ELECTRONIC FILING,
RECEIVED,
CLERK’S OFFICE,
NOVEMBER 2, 2005
*****
F’CB 2006
057
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
MIDWEST GENERATION, LLC,
)
FISK GENERATING STATION,
)
)
Petitioner,
)
)
v.
)
PCB
___________
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING
To:
Pollution
Control Board, Attn:
Clerk
Division ofLegal Counsel
James
R.
Thompson Center
Illinois
Environmental Protection Agency
100W. Randolph
1021 North Grand Avenue, East
Suite
11-500
P.O. Box
19276
Chicago, Illinois
60601
Springfield, Illinois
62794-9276
PLEASE TAKENOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution control Board the original and nine copies ofthe Appeal ofCAAPP Permit of
Midwest Generation, LLC, Fisk Generating Station and the Appearances ofSheldon A.
Zabel, Kathleen
C. Bassi,
Stephen J. Bonebrake, Joshua R. More, and Kavita M. Patel, copies of
which are herewith served upon you.
Kathleen
C. Bassi
Dated:
November 2, 2005
Sheldon A. Zabel
Kathleen
C. Bassi
Stephen
3.
Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
S.
~
ELECTRONIC FILING,
RECEIVED,
CLERK’S OFFICE,
NOVEMBER 2, 2005
*****PCB2006057*****
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MIDWEST GENERATION, LLC,
)
FISK GENERATING
STATION,
)
)
Petitioner,
)
v.
)
PCB
____________
)
(Permit Appeal
—
Air)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
I hereby file my appearance in this proceeding,
on behalfof Midwest Generation, LLC,
Fisk Generating Station.
Kathleen C. Bassi
Dated:
November 2, 2005
Sheldon A. Zabel
Kathleen
C. Bassi
Stephen 3.
Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
Ai~
ELECTRONIC FILING,
RECEIVED,
CLERK’S OFFICE,
NOVEMBER 2,
2005
*****pCB2005057*****
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
MIDWEST GENERATION, LLC,
)
FISK GENERATING STATION,
)
)
Petitioner,
)
)
v.
)
PCB
____________
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
APPEARANCE
I hereby file my appearance in this proceeding,
on behalfofMidwest Generation, LLC,
Fisk Generating Station.
S9hen
.
Bonebrake
Dated:
November 2, 2005
Sheldon A. Zabel
Kathleen
C.
Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER 2,
2005
*****PCB2006Q57*****
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
MIDWEST GENERATION,
LLC,
)
FISK GENERATING STATION,
)
)
Petitioner,
)
)
v.
)
PCB
___________
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
Ihereby file my appearance in this proceeding, on behalf ofMidwest Generation, LLC,
Fisk Generating Station.
Joshua R. More
Dated:
November 2, 2005
Sheldon A. Zabel
Kathleen
C.
Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
ELECTRONIC
FILING,
RECEiVED,
CLERKS OFFICE,
NOVEMBER 2,
2005
*****pcB2006057*****
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
MIDWEST GENERATION, LLC,
)
FISK GENERATING STATION,
)
)
Petitioner,
)
v.
)
PCB
___________
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
I hereby file my appearance in this proceeding,
on behalfof Midwest Generation, LLC,
Fisk Generating Station.
-
-
Kavita M. Pate)
Dated:
November 2, 2005
Sheldon A. Zabel
Kathleen
C.
Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER 2,
2005
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
MIDWEST
GENERATION, LLC,
)
FISK GENERATING STATION,
)
Petitioner,
)
)
V.
)
PCB
___________
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
)
CERTIFICATE
OF
SERVICE
I, the undersigned,
certify
that
I have served the
attached
Appeal ofCAAPP Permit of
Midwest Generation, LLC, Fisk Generating Station
and Appearances of Sheldon A. Zabel,
Kathleen
C. Bassi, Stephen J. Bonebrake, Joshua R. More, and Kavita M.
Patel,
by
electronic delivery upon the following
and by electronic
and first class mail upon
person:
the following person:
Pollution Control
Board, Attn:
Clerk
Division ofLegal Counsel
James
R. Thompson Center
Illinois
Environmental Protection Agency
100
W. Randolph
1021
North Grand Avenue, East
Suite
11-500
P.O.
Box
19276
Chicago, Illinois 60601
Springfield, Illinois
62794-9276
-
athleen C. Bassi
Dated:
November 2, 2005
Sheldon A. Zabel
Kathleen C.
Bassi
Stephen J. Bonebrake
Joshua R.
More
Kavita M. Patel
SCI-IIFF HARDIN, LLP
6600
SearsTower
233
South
Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
ELECTRONIC
FILING,
RECEIVED,
CLERK’S OFFICE,
NOVEMBER 2,
2005
PCB2OO6~O57*****
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MIDWEST GENERATION, LLC,
)
FISK GENERATING STATION,
)
)
Petitioner,
)
)
V.
)
PCB
___________
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
I hereby file my appearance in this proceeding, on behalf of Midwest Generation, LLC,
Fisk Generating Station.
Dated:
November 2, 2005
Sheldon A. Zabel
Kathleen
C. Bassi
Stephen A. Bonebrake
Joshua R. More
KavitaM.
Patel
SCHIFF IARDIN,
LIP
6600
Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
2,
2005
*****pCB2006057*****
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MIDWEST GENERATION, LLC,
FISK GENERATING
STATION,
)
)
Petitioner,
)
)
v.
)
PCB___________
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
APPEAL
OF CAAPP
PERMIT
NOW COMES
Petitioner, MIDWEST GENERATION,
LLC, FISK GENERATING
STATION (“Petitioner,”
“Fisk,” or “Midwest Generation”), pursuant to Section 40.2 ofthe
Illinois Environmental
Protection Act (“Act”) (415 ILCS 5/40.2) and 35
Ill.Adm.Code
§
105.300
el seq.,
and requests
a hearing before the Board to contest the decisions contained in the permit
issued
to Petitioner on
September 29, 2005, under the Clean Air Act Permit Program (“CAAPP”
or “Title V”) set forth at Section
39.5 ofthe
Act
(415
ILCS
5/39.5).
In support ofits Petition,
Petitioner states as follows:
I.
BACKGROUND
(35 HI.Mm.Code
§
105.304(a))
1.
On November
15,
1990,
Congress amended the Clean Air Act (42 U.S.C.
§~
740 l-7671q) and included in the amendments at Title V a requirement for a national
operating permit program.
The Title V program was to be implemented by states with
approved programs.
Illinois’ Title V program, the CAMP, was fully and finally approved by
the U.S.
Environmental
Protection Agency (“USEPA”) on December 4, 2001(66 Fed.Reg.
72946).
The Illinois
Environmental
Protection Agency (“Agency”)
has had
the authority to
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER 2,
2005
*****PCB2006057*****
issue
CAAPP permits since at least March
7,
1995,
when the state
was granted interim
approval of its CAAPP (60 Fed.Reg.
12478).
Illinois’
Title V program
is set forth at Section
39.5 ofthe Act, 35
III.Adm.Code 201.Subpart F, and 35
Ill.Adm.Code
Part
270.
2.
The Fisk Generating Station (“Fisk” or the “Station”), Agency ID. No.
031 600AMI, is an electric generating
station owned by Midwest Generation, LLC,
and
operated by Midwest Generation,
LLC
—
Fisk Generating Station,
The Fisk electrical
generating unit (“EGU”)
went online
in
1959.
The Fisk Generating Station
is located at 1111
West
Cermak
Road, Chicago, Cook County,
Illinois
60608-4536, within the Chicago ozone
and
PM2.5’
nonattaimnent areas.
Fisk is an intermediate load plant
and
can generate
approximately
348 megawatts.
Midwest Generation employs 65 people at the Fisk Generating
Station.
3.
Midwest Generation operates a coal-fired boiler and an auxiliary boiler at Fisk
that have the capability to fire at various modes that include the combination of coal, natural
gas, andlor fuel oil as their principal fuels.
h~
addition, the boilers fife natural
gas
or fuel oil as
auxiliary fuel during
startup
and for flame stabilization.
Certain
alternative fuels, such as used
oils generated on-site,
may be utilized
as well.
Fisk also operates associated coal handling,
coal processing, and ash handling activities.
In addition to the boilers, Fisk operates 8
gas- and
oil-fired turbines, used during peak demand periods.
Finally, there is
a 500-gallon gasoline
tank located at Fisk, to provide
fuel
for Station vehicles.
4.
Fisk is a major source subject to Title V.
Fisk is subject to the Emissions
Reduction
Market
System (ERMS) but
has
limited its emissions ofvolatile organic compounds
(“VOC”)to less than 15 tons per ozone season and so is not required to hold and surrender
‘Particulate matter less than 2.5
microns in aerodynamic diameter
-2-
ELECTRONIC
FILING,
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NOVEMBER 2,
2005
PCB 2005 057
allotment trading units
(ATUs).
The
EGU at Fisk is subject to both ofIllinois’ NOx reduction
programs:
the “0.25
averaging” program at 35
Ill.Adm.Code
217.Subparts
V and the
“NOx
trading program” or “NOx SIP call” at 35
Ill.Adm.Code 217.Subpart W.
Fisk is subject to the
federal
Acid
Rain
Program at Title IV ofthe Clean Air Act and was issued a Phase II Acid
Rain Permit on March
18,2005.
5.
Emissions of nitrogen oxides
(“NOx”) from the EGU
are controlled by
low
NOx burners and overfire
air.
Emissions ofsulfur dioxide
(“SO2”) from the EGU are
controlled by limiting the sulfur content ofthe fuel used for the boilers.
Likewise, Fisk
monitors and limits
the
sulfur
content ofthe fuel
oil used at the station in the boiler and
turbines.
Particulate matter (“PM”) emissions from the boiler
are
controlled by an electrostatic
precipitator (“ESP”).
PM emissions resulting from the milling ofpyrites
is controlled by a
baghouse.
Fugitive PM emissions from various other coal
and
ashhandling activities
are
controlledthrough baghouses, enclosures, covers, dust suppressants,
and water sprays, as
necessary and appropriate.
Emissions ofcarbon monoxide (“CO”) are limited through good
combustion practices in the boilers.
VOC emissions from the gasoline storage
tank
are
controlled by the use ofa submerged loading
pipe.
Additionally,
bulk
distributors ofthe
gasoline stored in the tank deliver gasoline
that
complies with the applicable Reid vapor
pressure
and are
required to comply with Stage I vapor control mechanisms and procedures,
both by rule and
by contract.
6.
The Agency received the
original
CAMP
permit application for the Fisk
Station on
September 7,
1995,
and
assigned Application No. 95090081.
Petitioner
substantiallyupdated this application March 23, 2003, March 26, 2003
and August 2, 2005.
The CAAPP permit application was timely submitted and updated,
and
Petitioner requested
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—
ELECTRONIC
FILING,
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2005
*****pcB2005057*****
and was
granted an application shield, pursuant to Section
39.5(5)(h).
Petitioner
has paid fees
as set forth at Section 39,508) of the Act since submitting the application for a CAAPP permit
for the Fisk Generating
Station, totaling $1.6 million since
1995.
Fisk’s state operating permits
have continued in full force and effect
since submittal of the CAAPP permit application,
pursuant to Sections 9.1(0 and
39.5(4)
(b)
of theAct.
7.
The Agency issued
a final draft permit for public review on June 4, 2003.
The
Agency subsequently held a hearing on the draft permit on August
11, 2003, in
the City of
Chicago, which representatives ofMidwest Generation attended and presented testimony.
Midwest Generation
filed written comments with the Agency regarding the Fisk draftpermit
on September 24, 2003.2
The Agency issued a proposedpermit for the Fisk Station on October
6, 2003.
Although this permit was not technically open for public comment, as it had been sent
to USEPA for its comment as required by Title V ofthe Clean Air Act, Midwest Generation,
nevertheless, submitted comments on November
19, 2003.
Subsequently,
in December 2004,
the Agency issued a draft revised proposed permit for Petitioner’s and other interested persons’
comments.
Midwest Generation again commented.
The Agency issued a second draft revised
proposed permit in July
2005 and allowed the Petitioner and other interested persons
10 days to
comment.
At the same time, the Agency released its preliminary Responsiveness Summary,
which was
a draft ofits response to comments, and invited
comment on that document as well,
Midwest Generation submitted
comments on this version of the permits proposed
for
all
six of
its generating
stations together
and on the preliminary Responsiveness Summary
on August
1,
2
Midwest Generation
has attached the
appealed peniiit to this
Petition.
However,
the
draft and proposed
permits and
other documents referred to herein should be included
in the administrative record that the Agency
will
file.
Other documents referred to in this Petition,
such as
cases or
Board
decisions, are easily accessible.
In the
interests ofeconomy,
then,
Midwest Generation
is
not
attaching
such
documents to this Petition.
-4-
ELECTRONIC FILING,
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*****PCB2006057*****
2005.
The Agency submitted the revised proposed permit to
USEPA for its 45-day review on
August
15, 2005.
The Agency did not
seek further comment on thepermit from the Petitioner
or other interested persons, and Midwest Generation has not submitted any further comments,
based
upon the understanding that the Agency had every intention to
issue the permit at the end
ofUSEPA’s review period.
8.
The final
permit
was, indeed,
issued on September 29, 20O5.~Although some
of Petitioner’s comments have been addressed in the various iterations ofthe permit,
it still
contains terms and conditions that are not acceptable to Petitioner, including conditions that are
contrary to applicable law and conditions that first appeared, at least in their final detail, in the
August 2005 proposed
permit
and upon which Petitioner did not have the opportunity to
comment.
It is for these reasons that Petitioner hereby appeals the permit.
This permit appeal
is timely submitted within 35 days following issuance of the permit.
Petitioner requests that
the
Board review the permit, remand itto the Agency,
and order the Agency to correct and
reissue thepermit, without further public proceeding, as appropriate.
II.
EFFECTIVENESS OF PERMIT
9.
Pursuant
to Section
10-65(b) ofthe Illinois Administrative Procedures Act
(“APA”),
5 ILCS
100/10-65, and the holding
in
Borg-Warner Corp.
v.
Mauzy,
427 N.E. 2d 415
(Ill.App.Ct.
1981)
(“Borg-Warner”),
the CAAPP permit issued by the Agency to Midwest
Generation for the Fisk Generating Station does not become effective until after a ruling by the
Board on the permit
appeal and, in the event of a remand, until the Agency has issued the
permit consistent with the Board’s order.
Section
10-65(b)provides that “when a licensee has
‘See
USEPA/Region
S’s
Perinils
website at
C
http://www.epa.gov/regignS/air/permitslilonline.
htm
+
“CAAPP permit
Records” 4
“Midwest Generation EME, LLC” for the source
located at
1111
West
Cermak Road, Chicago, for the complete “trail” of the milestone action dates for this permit.
-5-
ELECTRONIC
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2006
057
made timely and
sufficient application for the renewal ofa license
03’
a newlicense
with
reference
to any activity
ofa continuing nature, the existing license shall continue in full force
and effect
until the final agency decision on the application has been made unless a later date is
fixed by
order of a reviewing court.”
5
ILCS
100/10-65(b).
The
Borg-Warner
court found that
with respect to an appealed enviromnental
permit, the “final agency decision” is the
final
decision by the Board in
an appeal, not the issuance of the permit by the Agency.
Borg-
Warner,
427 N.E. 2d 415
at 422; see
also IBP,
Inc.
v,
IL Environmental Protection Agency,
1989 WL
137356 (Ill. Pollution
Control Bd.
1989);
Electric Energy,
Inc.
v.
IlL
Pollution
Control Bd,
1985
WL 21205
(III. Pollution Control Rd.
1985).
Therefore,
pursuant to the
MA as interpreted by
Borg-Warner,
the entire permit is not yet effective and the existing
permits for the facility continue in effect.
10.
The Act provides at Sections 39.5(4)(b) and
9.1(f) that the
state operating
permit continues in effect until issuance ofthe CAAPP permit.
Under
Borg-Warner,
the
CAAPP permit does not become effective until the Board issues its order in this appeal and the
Agency has reissued the permit.
Therefore, Midwest Generation currently has the necessary
permits
to operate the Fisk Generating Station.
11.
In the alternative, to avoid any question as to the limitation on the scope of the
effectiveness of the permit under the APA, Midwest Generation requests that the Board
exercise its discretionary authority at
35
Ill.Adm.Code
§
105.304(b) and stay
the entire permit.
Such a stay is necessary to protect Midwest Generation’s right to appeal and to avoid the
imposition ofconditions before it is able to
exercise that right to appeal.
Further, compliance
with the myriad of new monitoring, inspection, recordkeeping, and reporting conditions that
are in the CAAPP permit will
be extremely costly.
To
comply with conditions that are
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*****PCB2006057*****
inappropriate, as Midwest Generation
alleges below, would cause irreparable harm to Midwest
Generation, including
the imposition of these unnecessary costs
and the adverse effect
on
Midwest Generation’s right to adequate review on appeal.
Midwest Generation has no
adequate remedy at law other than this appeal to the
Board.
Midwest Generation is likely to
succeed on the merits of its appeal, as the Agency has included conditions that do not reflect
“applicable requirements,” as defined by Title V, and
has exceeded its authority to impose
conditions or the conditions are arbitrary and capricious.
Moreover,
the Board has stayed the
entirety of all the CAAPP permits that have been appealed.
See Bridgestone/Firestone
QO”
Road Tire Company v. IEPA,
PCB 02-31 (November
1, 2001);
Lone Star Industries,
Inc.
v.
IEPA,
PCB
03-94
(January 9,2003);
Nielsen & Brainbridge,
L.L.C.
v.
IEPA,
PCB
03-98
(February
6,
2003);
Saint-Gobain Containers,
Inc.
v. IEPA,
PCB 04-47 (November
6, 2003);
Champion Laboratories,
Inc.
v.
IEPA,
PCB 04-65
(January
8,
2004);
Noveon,
Inc.
v.
IEPA,
PD
04-102 (January 22, 2004);
Midwest Generation, LLC
—
Collins Generating Station v.
IEPA,
PCB
04-108
(January 22,
2004);
Board ofTrustees ofEastern Illinois University v.
IEPA,
PCB
04-110 (February
5,
2004);
Ethyl PetroleumAdditives,
Inc.,
v. JEPA,
PCB a4~1
13
(February
5, 2004);
Oasis Industries,
Inc.
v,
IEPA,
PCB 04-116 (May 6, 2004).
12.
Finally, a large number ofconditions included in this CAAPP permit are
appealed here.
To require some
conditions ofthe CAAPP permit to
remain in effect while the
contested conditions are covered by the old state operating permits creates an administrative
environment that would be, to
say the least, very confusing.
Moreover, the Agency’s failure to
provide a statement ofbasis,
discussed below, renders the entire permit defective.
Therefore,
Midwest Generation requests that the Board stay the entire permit for these reasons.
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13.
In sum, pursuant to Section
10-65(b) of the APA and
Borg-Warner,
the entirety
of the CAAPP permit does not become effective until the completion ofthe administrative
process, which occurs
when the Board has issued
its final ruling
on the appeal and the Agency
has acted on any remand.
(For the sake of simplicity, hereafter the effect of the APA will be
referred to as a “stay.”)
In the alternative, Midwest Generation requests that the Board,
consistent with its grants ofstay in other CAAPP permit appeals, because of the pervasiveness
of the conditions appealed throughout the permit, to protect Midwest Generation’s right to
appeal and in the interests of administrative efficiency, stay the entire permit pursuant to
its
discretionary authority at 35
Ill.Adm.Code
§
105.304(b).
In addition,
such a stay will
minimize the risk of unnecessary litigation concerning the question of a stay and expedite
resolution ofthe underlying substantive issues.
The state operating permits currently in effect
will continue in
effect throughout the pendency ofthe appeal and remand.
Therefore, the
Station will remain subject to the terms and conditions of those permits.
As the CAMP permit
caimot impose new substantive conditions upon
a permittee
(see
discussion below), emissions
limitations are the same under both permits.
The environment will not be harmed by a stay of
the CAAPP permit.
Ill.
ISSUES ON APPEAL
(35 ULAdm.Code
I
05.304(a)(2),
(3), and
(4))
14.
As a preliminary matter, the CAAPP
permits issued
to the Fisk Generating
Station
arid 20 of the other coal-fired power plants in the state on the same date are very similar
in content,
The same language appears in virtually
all ofthe permits,
though there are subtle
variations to some conditions to reflect the elements of uniqueness that are true at the stations.
For example, not all stations have the same types of emissions units.
Some units in the state
are subject to New Source Performance Standards
(“NSPS”), perhaps New Source Review
-8-
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*****PCB2006057*****
(“NSR”) or Prevention ofSignificant Deterioration (“PSD”), or other state or federal programs,
while others are not.
Applicable requirements may differ because ofgeographic
location.
As
a
result, the appeals of these permits filed with the Board will be equally as repetitious with
elements ofuniqueness reflecting the stations.
Further, the issues on appeal span the
gamut of
simple typographical errors to extremely complex questions of law.
Petitioner’s presentation
in this appeal
is by issue per unit type, identifying the permit conditions giving rise to the
appeal and the conditions related to them that would
be affected, should
the Board grant
Petitioner’s appeal.
Petitioner appeals all
conditions related to the conditions giving rise to the
appeal, however, whether such related conditions are expressly identified or not below.
15.
The Act does not require a permittee to have participated in the public process;
it merely needs to
object, after issuance, to
a term or condition in a permit in order to have
standing to appeal the permit issued
to him.
See
Section
40.2(a) of the Act (the applicant may
appeal while others
need to have participated in the public process).
However, Midwest
Generation, as will be evidenced by the administrative record, has actively participated to the
extent allowed by the Agency in the development ofthis permit.
In some instances, as
discussed in further detail below,
the Agency did not provide Midwest Generation with a
viable opportunity to comment,
leaving Midwest Generation with appeal as its only alternative
as a means ofrectifying inappropriate conditions.
These issues are properly before the
Board
in this proceeding.
16.
Section 39.5(7)(d)(ii) ofthe Act grants the Agency the authority to
“gapfihl.”
“Gapflhling” is the inclusion
in the permit ofperiodic monitoring requirements, where the
underlying applicable requirement does not include them.
This language faithfully reflects 40
CFR
§
70.6(a)(iii)(B), the subject oflitigation in
Appalachian Power Company v. EPA,
208
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(D.C. Cit. 2000).
The court in
Appalachian Power
found
that state authorities are
precluded from including provisions in permits requiring more frequent monitoring4 than is
required in the underlying applicable requirement unless the applicable requirement contained
no periodic
testing or monitoring, specified
no frequency for testing or monitoring, orrequired
only
a one-time test.
Appalachian Power
at 1028.
17.
The
Appalachian Power
court also noted that “Title V does not impose
substantive new requirements” and that test methods and the frequency at which they are
required “are surely
‘substantive’ requirements; they
impose duties and obligations on those
who are regulated.”
Appalachian Power
at
1026-27.
(Quotationmarks and citations in
original omitted.)
Thus, where the permitting
authority, here the Agency,
becomes over-
enthusiastic
in its gapfilling, it is imposing new substantive requirements contrary to Title V.
18.
The Agency, indeed, has engaged in gapfilling, as some ofthe Board’s
underlying regulations do not provide specifically for periodic monitoring.
C.f,
35
Ill.Adm.Code 212.Subpart E.
However, the Agency has also engaged in over-enthusiastic
gapfllling
in some instances, as discussed in detail
below.
These actions are
arbitrary and
capricious and are an unlawful assumption ofregulatory authority not granted by Section
39.5
of the Act.
Moreover, contrary to
Appalachian Power,
they, by their nature, unlawfully
constitute the imposition ofnew substantive requirements.
Where Petitioner identifies
inappropriate gapfilling as the basis for its objection to a term or condition ofthe permit,
Petitioner requests that the Board
assume this preceding discussion ofgapfilling as part ofthat
discussion of the specific term or condition.
4Note that testing
may
be a
type ofmonitoring.
See
Section
39.5(7Xd)(ii)
ofthe Act.
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19.
In
a number of instances specifically identified and discussed below, the
Agency has failed to provide required citations to the applicable requirement.
“Applicable
requirements” are those substantive requirements that have been promulgated or approved by
USEPA pursuant to the Clean Air Act which directly impose requirements upon
a
source,
including
those requirements set forth in the statute or regulations that are part ofthe
Illinois
SIP.
Section 39.5(1).
General procedural-type requirements or authorizations are not
substantive “applicable requirements” and are not sufficient basis for a substantive term or
condition in the permit.
20.
The Agency has cited generally to Sections 39.5(7)(a), (b), (e),
and (1) of the
Act or to
Section 4(b) ofthe Act, but it has not cited to
the substantive applicable requirement
that serves as the basis
for the contested condition in the permit.
Only applicable requirements
may be included in the permit,5
and the Agency is required by Title V to identif~’
its basis for
inclusion ofa permit condition (Section
39.5(7’)(n)).
Ifthe Agency cannot cite to the
applicable requirement and the condition is not proper gapfllling, the condition cannot be
included in the permit.
The
Agency has confused general data- and information-gathering
authority with “applicable requirements.”
They are not the same.
Section 4(b) ofthe Act
cannot be converted
into an applicable requirement merely because the Agency includes it as
the basis for a condition.
Failure to cite the applicable requirement is grounds for the Board to
remand the term or condition to the Agency.
21.
Moreover, the Agency’s assertion in the Responsiveness Summary that its
general statutory authority serves as
its authority to include
conditions necessaryto
“accomplish the purposes ofthe Act” misstates what is actually in the Act.
Responsiveness
5Appalachian Power,
208
F.3d
at
1026.
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Summary, p.
15;
see
Section 39.5(7)(n).
Section
393(7)(a) says that the permit is to
contain
conditions necessary to “assure compliance with all applicable requirements.”
(Emphasis
added.)
For the
Agency to
assume broader authority than that granted by the
Act is unlawful
and arbitrary
and capricious.
22.
Another general deficiency of the CAAPP permitting process in Illinois
is the
Agency’s refusal to develop and issue a formal statement ofbasis for the permit’s conditions.
This statement ofbasis is to explain the permitting authority’s rationale for the terms and
conditions ofthe permit.
It is to explain why the Agency
made the decision it did, and it is to
provide the permittee the opportunity to challenge the Agency’s rationale during the permit
development process or comment period.
Title V requires the permitting authority to provide
such a statement ofbasis.
Section
39.5(7)(n) ofthe Act.
The Agency’s after-the-fact
conglomeration ofthe very short project summary produced at public notice, the permit,
and
the Responsiveness Summary are just not sufficient.
When the permittee and the public are
questioning rationale in comments, it is evident
that the Agency’s view ofa statement ofbasis
is not sufficient.
Further, the Responsiveness Summary is prepared after the fact;
it is not
provided during permit development.
Therefore, it cannot serve as the statement of basis.
The
lack of a viable statement ofbasis, denying the permittee notice of the Agency’s decision-
making rationale and the opportunity to comment thereon, makes the entire permit defective
and
is, in and of itself, a basis for appeal and remand of the permit and stay ofthe entire permit.
A.
Issuance and Effective Dates
(Cover Page)
23.
The Agency issued the CAAPP permit that is the subject ofthis appeal to
Midwest Generation/Fisk Generating
Station on
September 29, 2005, at 7:18
p.m.
The
Agency
notified
Midwest Generation
that the permits had been issued through emails sent to Midwest
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Generation.
The email indicated that the permits were available on USEPA’s website, where
Illinois’
permits are housed.
However, that was not the case.
Midwest Generation was not
able to
locate the permits on the website that evening.
24.
The
issuance date of the permits becomes important because that
is also the date
that commences the computation of time for filing an appeal of the permit and for submitting
certain documents, according to the language in the permit, to the
Agency.
USEPA’s website
identifies that date as September 29,
2005.
Ifthat date is also the effective date, many
additional deadlines
would
be triggered, including the expiration date as well as the
date by
which certain other documents must be submitted to the Agency.
More critical, however, is
the fact that once
the permit becomes effective, Midwest Generation is obliged to comply with
it,
regardless of whether ithas any recordkeeping systems
in place, any additional
control
equipment that might
be necessary, new compliance requirements, and so forth.
It took the
Agency over two years to issue the final permit; the
first draft permit was issued June 4, 2003.
Over that course oftime, the Agency issued numerous versions ofthe permit,
and it has
changed considerably.
Therefore, it is unreasonable to expect Midwest Generation to
have
anticipated the final permit to
the degree necessary for it to have been
in compliance
by 7:18
p.m. on September 29,
2005.
25.
Moreover, publication ofthe permit on
a website is not “official” notification in
Illinois.
The company cannotbe deemed to “have” the permit until the original, signed version
of the
permit has been delivered.
Neither Illinois’ rules nor the Act havebeen amended
to
reflect electronic delivery ofpermits.
Therefore, until the permit is officially delivered
to the
company, it should not be deemed effective.
Fisk’s CAAPP permit was officially delivered via
the U.S. Postal
Service on October 3, 2005.
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26.
Neither the Act nor the regulations
specify when permits should become
effective.
Prior to the advent of TitleV.
however, sources have not been subject to such
numerous and detailed permit conditions and exposed
to enforcement from so
many sides.
Under Title V, not only the Agency through the Attorney General, but also USEPA and the
general public can bring enforcement suits for violation ofthe least matter in
the permit.
Ifthe
issuance date is the effective date, then this has the potential for tremendous consequences to
the permittee and is extremely inequitable.
27.
If the effective date ofthe permit is September 29, 2005, this also would create
an obligation to perform quarterly monitoring and to submit quarterly reports
(c.j
Condition
7.1.10-2(a)),
for the third quarter of 2005, consisting of less than 30 hours of operation.
The
requirement to perform quarterly monitoring, recordkeeping, and reporting for a quarterthat
consists ofless than 30
hours of operation, assuming the permittee would even have
compliance systems in place so quickly after issuance of the permit, is overly burdensome and
would not benefit the environment in any
manner.
Therefore, the requirement is arbitrary and
capricious.
28.
A more equitable and legal approach would
be for the Agency to
delay the
effective date of a final permit for a period of time reasonably sufficient for sources to
implement any new compliance systems necessary because ofthe terms ofthe permit or at
least until the time
for the source to appeal the permit has expired, so that an appeal
can stay
the permit until the Board can rule.
29.
Consistent with the APA, the effective date ofthe permit, contested herein, is
stayed, and Midwest Generation requests that the Board order the Agency to establish
an
effective date some period oftime after the permittee has received the permit following remand
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and reissuance ofthe permit to allow the pennittee sufficient time to implement the
systems
necessary to comply with all requirements in this very complex permit.
B.
Overall Source Conditions
(Section 5)
(i)
Recordkeeping of and Reporting
HAP Emissions
30.
The
CAAPP permit issued
to the Fisk Generating
Station requires Midwest
Generation to keep records of emissions of mercury, hydrogen chloride, and hydrogen fluoride
—
all
HAPs —and to report those emissions at Conditions
5.6.1(a) and (b) (recordkeeping) and
5.7.2 (reporting).
The Agency has not provided a proper statutory or regulatory basis
forthese
requirements other than the general provisions of Sections 4(b) and 39.5(7)(a), (b), and (e) of
the Act.
Citations merely to the general provisions ofthe Act do not create an “applicable
requirement.”
31.
In fact, there is
no applicable requirement that allows
the Agency to require this
recordkeeping and reporting.
There are no regulations that limit emissions ofHAPs from
the
Fisk Generating Station.
While USEPA has recently promulgated the Clean Air Mercury Rule
(“CAMR”) (70 Fed.Reg.
28605
(May
18,
2005)),
Illinois has not yet developed
its
corresponding regulations.
TheAgency correctly discussed this issue relative specifically to
mercury in the Responsiveness Summary by pointing out that it cannot add substantive
requirements through a CAAPP permit or through its oblique reference to the CAMR.
See
Responsiveness Summary in the Administrative Record, p.
21.
However, the Agency was
incorrect in its discussion in the Responsiveness Summary by stating that it can rely upon
Section 4(b), the authority for the Agency to
gather information, as a basis for requiring
recordkeeping and reporting of mercury emissions through the
CAAPP
permit.
The Agency
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has confused its authority to
gather data pursuant to
Section 4(b) and its authority to gapfill to
assure compliance with the permit with the limitation on its authority under Title V to include
Si
“applicable requirements” in a Title V permit.
SeeAppalachian Power.
Even by
including only recordkeeping and reporting of HAP emissions in the permit, the Agency has
exceeded its authority just as seriously as if it had included emissions limitations for HAPs in
the permit.
Section 4(b) does not provide the authority to impose this condition
in
a CAAPP
permit.
32.
Further, the Agency’s own regulations, which are
part ofthe approved program
or
SIP for its Title V program, preclude the Agency from requiring the recordkeeping and
reporting of HAP emissions that it has included
at Conditions
5.6.1(a) and (b) and 5.7.2.
The
Agency’s Annual
Emissions Reporting rules, 35 Ill.Adm.Code Pan 254, which Condition 5.7.2
specifically addresses, state as follows:
Applicable Pollutants for Annual Emissions Reporting
Each Annual Emissions Report shall include applicable
information for all regulated air pollutants, as defined in
Section
39.5
ofthe Act 415
ILCS 5/39.5,
except for the following
pollutants:
b)
A hazardous air pollutant emitted by an emission unitthat
is not subject to
a National Emissions Standard for
Hazardous
Air Pollutants (NESHAP) or maximum
achievable
control technology (MACT).
For purposes of
this
subsection (b), emission units that are not required to
control or limitemissions but are
required to monitor, keep
records, or undertake other specific activities are
considered subject to such regulation or requirement.
35 lll.Adm.Code
§
254.120(b).
(Brackets in original; emphasis added.)
Power plants are not
subject to any NESHAPs or MACT standards.
See
69 Fed.Reg.
15994 (March 29, 2005)
(USEPA withdraws its listing ofcoal-fired
power plants under Section
112(c) ofthe Clean Air
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Act).
The Agency has not cited any other applicable requirement that provides it with the
authority to require Midwest Generation to keep
records ofand report HAP emissions.
Therefore, pursuant to the provisions of
§
254.120(b) ofthe Agency’s regulations, the
Agency
has no regulatory
basis for requiring the reporting ofHAPs emitted by coal-fired power plants.
33.
Consistent with the APA,
Conditions 5.6.1(a)
and (b)
in toto
and Condition
5.7.2
as it relates to reporting emissions ofHAPs in the Annual Emission Report, contested
herein, are stayed,
and Midwest Generation requests that the Board order the Agency to amend
the permit accordingly.
(ii)
Retention and Availability
ofRecords
34.
Conditions 5.6.2(b) and (c) switch the burden of copying records the Agency
requests from the Agency, as stated in
Condition 5.6.2(a), to the permittee.
While Midwest
Generation generally does not object to providing the Agency records reasonably requested
and
is reassured by the Agency’s statement in the Responsiveness Summary that its “on-site
inspection ofrecords
and written or verbal requests for copies ofrecords will
generally occur at
reasonable times and be reasonable in nature and scope” (Responsiveness Summary, p.
18)
(emphasis added), Midwest Generation may
not be able
to print and provide data within the
span of an inspector’s visit where the records are electronic and include vast amounts ofdata.
Moreover,
most ofthe electronic records are already available to the Agency through its own
or USEPA’s databases, and where this is the case, Midwest Generation should not be required
to again provide the data absent its loss for some unforeseen reason, and certainly should not to
have to print out the information.
Further, Midwest Generation is troubled
by the qualifier
generally
that the Agency included
in
its statement.
It implies that
the Agency may not always
choose reasonable times, nature, and scope ofthese requests.
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35.
Consistent with the APA. Conditions 5.6,2(b) and (c), contested herein, are
stayed,
and Midwest Generation requests that the Board order the
Agency to
amend them in a
manner to correct the deficiencies outlined above.
(iii)
Submission
of Blank Record Forms to
the
Agency
36.
Midwest Generation may be confused as to what the Agency expects with
respect to Condition 5.6.2(d).
See
Condition
5.6.2(d).
Midwest Generation’s first
interpretation ofthis condition was that the Agency was requiring submission ofthe records
that are required by Conditions
7.1.9, 7.2.9, 7.3.9, 7.4.9, 7.5.9, 7.6.9, and 7.7.9.
However,
upon rereading Condition 5.6.2(d), Midwest Generation has come to believe that through this
condition. the Agency is requiring Midwest Generation to submit blank copies ofits records,
apparently so that the Agency can check them for form and type ofcontent.
Ifthis
latter is the
correct interpretation of this condition, the
condition is unacceptable, as the Agency does not
have the authority to oversee how Midwest Generation conducts its internal methods of
compliance.
There is no basis in law for such a requirement and it must be deleted.
37.
Each company has the right and responsibility to develop and implement
internal recordkeeping systems.
Even the most unsophisticated company has the right to
develop and implement
internal recordiceeping systems and bears the responsibility for any
insufficiencies in doing so.
Absent a statutory grant or the promulgation ofreporting formats
through rulemaking, the Agency has no authority to oversee the development ofrecordkeeping
or reporting formats.
The Agency has the authority to require that certain information
be
reported
but cites to no
authority, because there
is none, to support this condition.
38.
Nor does
the Agency provide a purpose for this condition
—
which serves as an
excellent example ofwhy a detailed statement-of-basis document should accompany the
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CAAPP permits, including the drafts,
as required by Title V.
One can assume that the
Agency’s purpose for this condition is to review records that permittees plan to keep in support
of the various
recordkeeping requirements in the permit in order to
assure that they are
adequate.
However, there is
no regulatory or statutory basis for the Agency to
do this, and it
has
cited none.
Moreover, ifthe Agency’s purpose for requiring this submission is to
determine the adequacy ofrecordkeeping, then without inherent knowledge of all the details of
any given
operation, it will be difficult for the Agency to determine the adequacy of
recordkeeping forthe facility through an off-site review.
Ifthe Agency fmds records that are
submitted during theprescribed reporting periods inadequate, the Agency has a remedy
available to
it through the law.
It can enforce against the company.
That is the risk that the
company bears.
39.
Further, if the company is concerned with the adequacy of its planned
recordkeeping, it can ask the
Agency to provide it some counsel.
Providing such counsel or
assistance is a statutory
function of theAgency.
Even then, however, the Agency will qualify
its assistance in order to
attempt to avoid reliance on thepart ofthe permittee should there be
an enforcement action brought.
An interpretation of this condition could be that
by providing
blank recordkeeping forms to the Agency, absent a communication from the Agency that they
are inadequate, enforcement against thepermittee for inadequate recordkeeping is barred,
so
long as the forms are filled out,
because they are covered by the permit shield.
40.
Additionally,
the Agency has violated Midwest Generation’s due process rights
under the Constitution by requiring submission ofthese documents before Midwest Generation
had the opportunity to exercise its right to appeal the condition, as granted by the Act at
Section 40.2.
The Act allows permittees 35
days in which to appeal conditions of the permit to
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which it
objects. The Agency’s requirement at Condition 5.6.2(d) that Midwest Generation
submit blank
forms within 30 days of issuance of the permit significantly undermines Midwest
Generation’s right to
appeal
—
and the effectiveness ofthat right
—
or forces
Midwest
Generation to
violate the terms and conditions of the permit to fully preserve its
rights.
Although the condition is stayed, because the
appeal may not be filed until
35 days after
issuance, there could at least be a question as
to whether Midwest Generation was in violation
from the time the report was due until the appeal was filed.
Midwest Generation
submits that
the stay relates back to the date of issuance, but
it
is improper to even create this uncertainty.
This denies Midwest Generation due process and
so is unconstitutional, unlawful, and arbitrary
and capricious.
41.
Consistentwith the APA, Condition 5.6.2(d), contested herein, is stayed, and
Midwest Generation requests that the Board
order the Agency to delete it from the permit.
In
the alternative,
Midwest Generation requests that the Board interpret this condition suchthat if
the Agency fails to communicate any inadequacies it finds in blank recordkeeping forms
submitted to it, enforcement against Midwest Generation for inadequate records is barred, so
long as those records were completed, as a part of the pennit shield.
C.
NOx SIP Call
(Section 6.1)
42.
Condition 6.1.4(a) says, “Beginning in 2004, by November30 ofeach
year.~..”While this
is a true statement,
i.e.,
theNOx trading program in Illinois commenced
in 2004,
it is inappropriate for the Agency to include in the permit a condition with a
retroactive effect.
By including this past
date in an enforceable permit condition, the Agency
has exposed Midwest Generation to potential enforcement under this
permit for acts or
omissions that occurred prior to
the effectiveness ofthis permit.
It is unlawful for the Agency
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to require retroactive compliance with past requirements in a new permit
condition.
Lake
Envtl.,
Inc.
v.
The State ofillinois,
No. 98-CC-S 179,2001
WL 34677731,
at *8
(Ill.Ct.Cl. May
29. 2001) (stating “retroactive applications are disfavored in
the law, and are
not ordinarily
allowed in the absence of language explicitly so providing.
The authoring agency of
administrative regulations is no
less subject to these settled principles ofstatutory construction
than any other arm of government.”)
This language should be changed to refer to the
first
ozone season occurring upon effectiveness ofthe permit, which,
for example, if the pennit
appeal is resolved before September 30, 2006, would
be the 2006 ozone season.
Rather than
including a specific date, Midwest Generation suggests that the condition merely refer to the
first ozone season during which the permit is effective.
43.
For these reasons, Condition 6.1.4(a) is stayed pursuant to the APA,
and
Midwest Generation requests that the Board order the Agency to amend the language to avoid
retroactive
compliance with past requirements.
D.
Boilers
(Section 7A)
(i)
Opacity as a Surrogate for PM
44.
Historically, power plants and other types ofindustry have demonstrated
compliance with emissions
limitations for PM through periodic stack tests and consistent
application ofgood operating practices.
Prior to the development ofthe CAAPP permits,
opacity
was primarily a qualitative indicator of the possible need for further investigation of
operating conditions or even for the need of new stacktesting.
However, in the iterations of
the permit since the publication
ofthe October 2003 proposed permit, the Agency has
developed an approach in which opacity serves as a quantitative surrogate for indicating
exceedances of the PM emissions limitation.
For the first time
in the August 2005
proposed
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permit, the Agency required Petitioner to identify the
opacity measured at the 95~percentile
confidence interval of the measurement ofcompliant PM emissions during the last and other
historical stack tests as the upper bound opacity
level that triggers reporting ofwhether there
~j~yhave been
an exceedance ofthe PM limit without
regard for the realistic potential
for a
PM exceedance.
These reporting requirements are
quite onerous, particularly for the units that
tested at the lowest levels of PM and opacity.
The inclusion ofthese conditions exceeds the
scope ofthe Agency’s authority to
gapfill and so are
arbitrary and capricious and must be
stricken from the permit.
45.
The provisions requiring the use of opacity as effectively a surrogate for PM are
found in Conditions 7.1 .9(c)(ii), linked
to Condition 7.1.4(b), which contains the emissions
limitation for PM;
7. l.9(c)(iii)(B), also linked
to Conditions 7.1.4(b) and 7. 1.9(c)(ii);
7.1.10-
I(a)(i) and (ii), linked
to Condition 7.1.10-3(a) and 7.1.4(b); 7.1.1 O-2(a)(i)(E), linked to
Conditions 7.1 .9(c)(iii)(B) and 7.1 .9(c)(ii);
7.1.1 0-2(d)(v) generally; 7,1.1 0-2(d)(v)(C),
requiring an explanation ofthe presumed number and magnitude of opacity and PM
exceedances and speculation as to the causes ofthe exceedances; 7.1.10-2(d)(v)(D), requiring a
description of actions takento reduce opacity and PM exceedances and anticipated effect on
future exceedances;
7.1.1 0-3(a)(ii), requiring follow-up reporting within
15 days after an
incident during which there may have been a PM exceedance based upon this upper
bound of
opacity; and 7.1.12(b), relying on continuous opacity monitoring pursuant to
Condition
7.1.8(a), PM testing to determinethe upper bound ofopacity,
and the recordkeeping conditions
described above to demonstrate compliance with the PM emissions limitation.
46.
No one can provide a reliable, exact PM concentration level anywhere in the
United States today
outside of stack testing.
Obviously, it is impossible to continuously test a
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stack to determine a continuous
level ofPM emissions, and it would be unreasonable for the
Agency or anyone
else to
expect such.
Pursuant
to some of the consent decrees settling
a
number ofUSEPA’s enforcement actions against coal-fired power generators, some
companies, including one in Illinois, are testing continuous
PM monitoring devices.6
None of
these companies, according to their consent decrees, is required to rely on these PM continuous
emissions monitoring systems (“CEMS”) to determine their current PM emissions levels.7
The
PM CEMS are not yet
at a point of refmement where they can even be considered credible
evidence of PM emissions
levels; at least, we are not aware ofany case in which government
or citizens suing under Section
304 of the Clean AirAct have relied upon PM GEMS as the
basis of a case for PM violations.
As
a result,
sources must rely upon the continuity or
consistency of conditions that occurred during
a successful stack testto
provide reliable
indications of PM emissions levels.
47.
Historically, opacity has never been used as a reliable, quantitative surrogate for
PM emissions levels.
The Agency itself acknowledged that opacity
is not a reliable indicator
of PM concentrations.
See
Responsiveness
Summary, pp.
15-16,
42~44.8Midwest Generation
agrees
with the Agency that increasing opacity may indicate that PM emissions are increasing,
but this is not always the case nor is a given opacity
level an indicator ofa given PM level at
any given time,
let alone at different times.
Midwest Generation’s current operating permits
6
Cf
¶
89
of the
consent decree entered
in
U.S.
v. Illinois Power
Company,
Civ. Action No. 99-833-MJR
(S.D.l1l.),
found in the
Agency’s administrative record of
Dynegy
Midwest Generation’s
(“Dyrtegy”) appeals
of
its
permits,
filed on
or about the same day
as this appeal.
See
Administrative
Record.
The Agency’s requirement that
Dynegy
rely on uncertified PM
CEMS
is
included in
Dynegy’s
appeals.
~“Setting
a specific level of opacity that is deemed to be
equivalent to
the
applicable PM emission limit.
is not possible
on
a
variety
of levels.
.
.
.
It would also be inevitable that such
an action
would be flawed
as the
operation of a boiler
may
change over time
and
the coal supply will also change,
affecting the nature
and quantity
of
the
ash
loading to
the
ESP.
These
type
ofchanges cannot be prohibited, as
they
are inherent in
the routine operation
ofcoal-fired
power
plants.
However, such
changes could invalidate
any
pre-established opacity value.”
Responsiveness Summary, p. 44.
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require triennial PM stack testing,
to be performed within
120
days prior to expiration ofthe
permit,
which has an expiration date three years following issuance.
This requirement
comprises periodic monitoring.
Relying on stack testing and operational practices is currently
the best and most appropriate approach to assuring compliance with
PM emissions limitations.
Moreover, the compliance method for PM emissions limitations in the NSPS
is only through
stack testing, not through opacity
as a surrogate for PM.
48.
Despitethe Agency’s implications to the contrary in the Responsiveness
Summary
(see
Responsiveness Summary, pp.
42-44), thepermit does make opacity a surrogate
for PM compliance.
When the
Agency requires even estimates of PM levels or guesses
as to
whether there is an exceedance of PM based upon
opacity, opacity has been quantitatively
tied
to PM compliance.
Further, the opacity level triggers reporting that the opacity/PM surrogate
level
has been exceeded and so there ~
havebeen
an exceedance ofthe PM level regardless
of any evidence to the contrary.
For example, if the opacity/PM surrogate level
of,
say,
15
is
exceeded, this
must
be reported despite the fact that
all fields in the electrostatic precipitator
were on and operating, stack testing indicated that the PM emissions level at the
95th
percentile
confidence interval is 0.04 lb/mmBtulhr,
and the likelihood that there was an
exceedance of the
PM
emissions limitation of 0.1
lb/mmBtulhr
is extremely low.
The purpose ofsuch reporting
eludes Petitioner.
It does not assure compliance with the PM limit and so inclusion ofthese
conditions exceedsthe Agency’s gapfihling authority and is, thus, unlawful and arbitrary and
capricious.
Moreover, this unnecessary reporting requirement is a new substantive
requirement, according to
Appalachian Power,
not allowed under Title V.
49.
Contrary to the Agency’s assertion in the Responsiveness Summary that opacity
provides a “robust means to distinguish compliance operation of a coal-fired boiler and its ESP
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from impaired operation”
(Responsiveness Summary, p.
43), the robustness is actually
perverse.
Relying upon opacity as a surrogate for PM emissions levels has the perverse result
ofpenalizing the best-operating units.
That is,
the units for which the stack testing resulted in
very low opacity and very low PM emissions
levels
are
the units for which this
additional
reporting will be most frequently triggered.
For example, stack testing at one of Midwest
Generation’s units measured
PM emissions of 0.008 lb/mmBtu and the opacity during
the test
at the 9S~~
percentile confidence interval was
1.
This condition in the permit would require
Midwest Generation to submit a report for every operating hour for the quarter, over 2,180
reports for the third quarter of 2005, stating that the unit ~y
have exceeded the PM.
Clearly,
this condition will result in overly burdensome reporting that serves no purpose.
As such, it
exceeds the Agency’s authority to
gapfill, is unlawful, and is arbitrary and capricious.
50.
Further, this condition effectively creates a false low opacity limitation.
In
order to avoid the implication that there mayhave been an
exceedance ofthe PM limit, the
opacity limit becomes that level that is the upper bound at the
95°’
percentile confidence
interval in the PM testing.
By including these conditions, the Agency has created a new,
substantive requirement without having complied with proper rulemakingprocedures.
This is
unlawful and beyond the scope of the Agency’s authority
under Section
39.5
of the Act and
Title V ofthe Clean Air Act.
It also violates the provisions ofTitle VII ofthe Act.
See
Appalachian Power.
51.
These conditions invite sources to perform stack testing under operating
conditions that are less than normal,
i.e.,
to “detune” the units, to push the bounds of
compliance with the PM limit in order to avoid the
unnecessary
recordkeeping
and
reporting
the conditions require, particularly for the
typically
best operating units.
That is, to identi&
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more realistically the operating conditions that would result in emissions
closer to the PM
limit,9Midwest Generation would have to
perform stack tests
with
some elements ofthe ESP
turned
off,
even though they would not be turned offduring
normal
operation.
Testing
in
a
manner
that
generates results
close to the
PM limit may result in opacity
that
exceeds the
opacity limit.
Nevertheless,
in order to
avoid the unnecessary and clearly
arbitrary
and
capricious recordkeeping and reporting requirements included in these conditions, such stack
testing is called for, despite the fact that the results of such tests will not reflect normal
operation of the boilers.
This is counter-intuitive,
and it took Midwest Generation quite
some
time to grasp that this
is,
at least indirectly, what these conditions
call
for.
It is so counter-
intuitive as
to be the antithesis ofgood
airpollution control practices, yet this is what the
Agency is essentially demanding with these conditions.
Moreover, arguably, sources could
operate at these detuned levels and still be in compliance with their permits and the underlying
regulations but emit more pollutants into the atmosphere than they typically
do now.
This
result
illustrates the perversity of the condition.
52.
Periodic stack testing and good operational practices fill the gap.
Periodic stack
testing according to
the schedule
in Condition 7.1
.7(a)(iii) is sufficient to assure compliance
with the PM
limit and satisiS’ the periodic monitoring requirements
of Section
39.5(7)(d)(ii)
of
the Act according to the
Appalachian Power
court.
In fact, “periodic stack testing” is the
Agency’s
own phrase
in Condition 7.1.7(a)(iii) and is consistent
with the findings of
Appalachian Power.
~Midwest
Generation’s policy
is that
the boiler
be
operated in a compliant manner.
During
stack
tests,
Midwest
Generation has
consistently
operated the
boiler in
a
normal
mode,
meaning that
all pollution control
devices are
operating,
the
boiler
is
operating
at normal
and maximum load, and so forth.
PM
test
results typically
are nowhere near
the
PM
limit.
PM
emissions
levels
during
Fisk’s last
stack
test
was
at 0.079
lb/mmBtu for Unit
19, well
in compliance
with the
PM
limitation.
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53.
Conditions 7.1.1 0-2(d)(v)(C) and (D)
in particular
are repetitious of Condition
7.1.1 0-2(d)(iv).
Both require descriptions ofthe same incident and prognostications
as to how
the incidents can be prevented in the
future.
One such requirement, Condition
7.1 .1 0-2(d)(iv),
is sufficient to
address the Agency’s concern, although Midwest Generation also object&to
Condition
7.1.1 O-2(d)(iv) to the extent that
it requires reporting related to the opacity
surrogate.
54.
As with Condition 5.6.2(d) discussed above, Condition 7.l.9(c)(ii) denies
Midwest Generation due process.
Condition
7.1 .9(c)(ii) requires that the
records.
.
.
that identify the upper bound ofthe 95
confidence
interval (using a normal distribution and
1
minute averages) for
opacity measurements.
.
.
,
considering an hour of operation,
within
which compliance with the
PM limit
is assured, with
supporting explanation and documentation.
..
.
shall be submitted
to the Illinois EPA in accordance with Condition 5.6.2(d).
Obviously, if Condition 5.6.2(d) denies Midwest Generation due process, Condition
7.1 .9(c)(ii)
does as well for the same reasons.
Midwest Generation was not granted the opportunity to
appeal the condition before it was required to submit to the Agency information
that Midwest
Generation believes is not usefi.tl
or reliable.
Midwest Generation is particularly loathe to
provide the Agency with this infonnation because it believes that
the information will be
misconstrued and
misused.
55.
Finally, Condition 7.1.1 0-2(d)(vi) requires Midwest Generation
to submit a
glossary of “common technical terms used by the
Permittee” as part of
its reporting of
opacity/PM exeeedance events.
If the terms are “common,”
iteludes Midwest Generation as to
why, then, they require definition.
Moreover, this requirement does not appear anywhere else
in the permit.
If”common technical terms” do not require definition in other contexts in this
permit, then surely they do not require definition in this context.
This requirement should be
deleted from the permit.
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56.
Consistent with the APA, Conditions 7.1 .9(c)(ii), 7.1 .9(c)(iii)(B).
7.1.1 0-1(a)(i)
and (ii), 7.l.lO-2(a)(i)(E).
7.1.lO-2(d)(iv),
7.1 .10-2(d)(v), 7.1 .lO-2(d)(v)(A), 7,1 .lO-2(d)(v)(B).
7.1.1 0-2(d)(v)(C),
7.1.1 O-2(d)(vXD), 7-1.1 O-2(d)(vi), 7.1.
0-3(a)(ii), and 7.1.12(b), contested
herein, and any other related conditions that the Board finds appropriate are stayed, and
Midwest Generation requests that the
Board order the Agency to delete these conditions.
(ii)
Reporting the Magnitude of PM Emissions
57.
Somewhat consistent with its direction for PM, or, charitably, arguably so, the
Agency also requires
Midwest Generation to determine and report the magnitude of PM
emissions during startup and
operation during malfunction and
breakdown.
See
Conditions
7.1
.9(g)(i),
7.1 .9(g)(ii)(C)(V),
7.1 .9(h)(ii)(D)(1II), and 7..
0-2(d)(iv)(A)(III).
Compliance
with these conditions is an impossibility and, therefore, the inclusion of these conditions in the
permit is arbitrary and capricious.
Midwest Generation does not have a means for measuring
the magnitude ofPM emissions at any time otherthan during stack testing
—
not even using
the
opacity surrogate.
There
is not a certified, credible, reliable alternative to stack testing to
measure PM emissions.
58.
Additionally, Condition
7.1.1 O-2(d)(iv)(A)(V) requires Midwest Generation to
identify “tjhe
means by which the
exceedance of
the PM emissions limitJ was indicated or
identified, in addition to the level of opacity.”
Midwest Generation believes that this means
that
it must provide information relative to any other means, besides opacity
—
which, as
discussed in detail above, Midwest Generation believes is an inappropriate and inaccurate basis
for determiningwhether there are exceedances ofthe PM limit, let alone the magnitude ofany
such exceedance
—
that Midwest Generation relied upon to determine
there was an exceedance
ofthe PM limit.
Besides stack testing or perhaps total shutdown ofthe ESP, there are none.
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59.
Consistent with the APA, Conditions 7.1 .9(g)(i), 7.1 .9(g)(ii)(C)(V),
7.1 .9(h)(ii)(D)(III). and 7.1.1 0-2(d)(iv),
specifically 7.1.1 0-2(d)(iv)(A)(III) and (V),
contested
herein, are stayed, and Midwest Generation requests that the Board order the Agency to delete
these conditions from the permit.
(iii)
PM Testing
60.
Midwest Generation interprets the language in
Condition
7.1 .7(a)(i) to mean
that stack testing that occurs after December 31,
2003, and before March 29, 2006,
satisfies the
initial testing requirement included in the permit.
However, the language is not perfectly
clear
and should be clarified.
61.
The Agency has included a requirement in thepermit at Condition
7.1 .7(b)(iii)
that Midwest Generation perfonn testing for PM1O
condensibles.’°First, this requirement is
beyond the scope of the Agency’s authority to include in a CAAPP permit, as such testing is
not
an “applicable requirement,” as discussed in detail below.
Second, even if the condition
were appropriately included in the permit, which
Midwest Generation does not by any means
concede, the language of Condition
7.1.7(b)*H is not clear as to the timing ofthe required
testing, largely because Condition 7.l.7(a)(i) is not clear.
62.
With respect to the inclusion of the requirement for Method 202 testing at
Condition
7.1 .7(b)(iii) at all
in a CAAPP permit, the Agency has exceeded its authority and the
requirement should be removed from the permit.
At the least, the requirement should be set
aside in a state-only portion ofthe CAAPP permit,
although Midwest Generation believes its
inclusion
in any permit would
be inappropriate because there is no regulatory requirement that
‘°
Condensible
is
the Board’s spelling in the regulations
and
in scientific publications, thus our spelling of
it
here despite the Agency’s chosen
spelling
in
the permit,
which is the preferred spelling
in
the
Webster’s dictionaiy.
See
35
lll.Adm.Code
§
212,108.
The
asterisk
is
in the permit.
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applies PMIO limitations to the Fisk Generating
Station..
In response to comments
on this
point, the
Agency stated in the Responsiveness Summary at page
18, “The requirement for
using both Methods
5 and 202
is authorized by Section 4(b) ofthe Environmental Protection
Act.”
Midwest Generation does not question the Agency’s authority to gather information.
Section 4(b) of the Act says,
The Agency
shall have the duty to
collect and disseminate such
information, acquire such technical data, and conduct such
experiments as may be required to carry out the purposes ofthis
Act,
including ascertainment ofthe quantity
and nature of
discharges from any contaminant source and data on those sources,
and to operate and arrange for the operation of devices for the
monitoring ofenvironmental quality.
415 ILCS
5/4(b).
However, this authority does not make testing for PM1O condensibles an
“applicable requirement” under Title V.
As discussed above, an “applicable requirement” is one
applicable to thepermittee pursuant to a federal regulation or a SIP.
63.
Further, simply because Method 202 is one of USEPA’s reference methods does
not make it an “applicable requirement” pursuant to Title V, as the Agency suggests in the
Responsiveness Summary.
The structure of the Board’s PM regulations establish the
applicable requirements for the Fisk Generating
Station.
The Fisk Generating Station
is
subject to the requirements of 35 Ill.Adm.Code
212.Subpart E, Particulate Matter Emissions
from Fuel Combustion Emission Units.
It is not and never has been located in a PMIO
nonattainment area.12
TheBoard’s PM regulations are structured such that particular PM10
requirements apply to identified sources located in the PM10 nonattainment areas.t3
No such
requirements apply now or have ever applied to the Fisk Generating
Station.
12
In fact,
there
are
no more
PMIO nonattainment areas in the state.
See
70 Fed.Reg.
55541
and
55545
(September 22, 2005), redesignating to attainment the McCook
and
Lake Calumet nonattainment
areas,
respectively.
‘~
Presumably, these sources will remain subjectto those
requirements as part of Illinois’ maintenance plan.
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64.
The measurement method for PM, referencing only Method
5 or derivatives of
MethodS, is at
35
Ill.Adm.Code
§
212.110.
This section ofthe Board’s rules applies to the
Fisk Generating
Station.
The measurement method for PM 10, on the other
hand, is found at 35
Ill.Adm.Code
§
212.108, Measurement Methods for PM-b
Emissions
and Condensible PM-b
Emissions.
This section references both Methods
5
and 202, among others.
Not subject to
PM 10 limitations, the
Fisk Generating Station
is not subject to
§
212.108, contrary to the
Agency’s attempt
to expand its applicability in the Responsiveness Summary by stating,
“Significantly, the use ofReference Method 202
is not
limited by geographic area or regulatory
applicability.”
Responsiveness Summary,
p.
18.
This is certainly a true statement if one is
performing a test ofcondensibles.
However, this statement does not expand
the requirements
of
§
212.110 to include
PM1O condensible testing when the limitations applicable tothe source
pursuant to 212.Subpart E are for only PM, not PM10.
Therefore, there is no basis for the
Agency to
require in the CAAPP permit, which is limited
to including QflJy applicable
requirements and such monitoring, recordkeeping, and reporting that are necessary to
assure
compliance, that the Fisk Generating Station be tested pursuant to Method 202.
65.
The Agency even concedes in the Responsiveness Summary that Method
202
is
not an applicable requirement:
The inclusion ofthis requirement in these CAAPP permits, which
relates
to full and complete quantification of emissions, does not
alter the test measurements that are applicable for determining
compliance
with PM emissions standards and limitations, which
generally do not include condensable sic
PM emissions.
In
addition, since condensable
sic
PM emissions are not subject to
emission standards.
.
-.
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Responsiveness Summary, p.
18.
(Emphasis added.)
Further, the Agency says,
“Regulatorily,
only filterable1141
PM emissions need to be measured.”
Responsiveness Summary, p.
18.
The
Agency attempts to justif~iinclusion of the requirement for testing condensibles by stating that
the
data are needed to “assist in conducting assessments of the air quality impacts ofpower
plants, including the
Illinois EPA’s
development ofan attainment strategy for
PM2.5”
or by
stating that “the use ofReference Method 202
is not
limited by geographic area or regulatory
applicability.”
Responsiveness
Summary, p.
18.
Under the Board’s rules,
it is limited to testing
for PM, and so, at least in Illinois, its “regulatory applicability”
is, indeed, limited.
These
attempted justifications do not convert testing for condensibles into an applicable requirement.
66,
While the Agency has a duty under Section 4(b) to
gather data, it must be
done
in compliance
with Section 4(b).
Section 4(b), however, does not create or authorize the
creation of permit conditions.
The Board’s rules serve as thebasis for permit conditions.
Therefore, Midwest Generation does dispute that requiring such testing in the CAAPP permit
is appropriate.
In fact, it is definitely not appropriate.
It is unlawful and exceeds the Agency’s
authority.
67.
The requirement for Method 202 testing must be deleted from the permit.
Consistent with the APA, Condition 7.I.7(b)* and the inclusion ofMethod 202 in Condition
7.1 .7(b)(iii), contested herein, are stayed, and Midwest Generation requests that the Board
order the Agency to delete the requirement for Method 202 testing from thepermit.
(iv)
Measuring
CO Concentrations
68.
The CAAPP permit issued to
the Fisk Generating Station requires Midwest
Generation to conduct, as a work practice, quarterly “combustion evaluations” that consist of
14
I.e.,
non-gaseous PM; condensiblesare gaseous.
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“diagnostic measurements of the concentration of CO in the flue gas.”
See
Condition 7.1.6(a).
See also
Conditions 7.1 .9(a)(vi) (related recordkeeping requirement), 7.1.10-1(a)(iv) (related
reporting requirement), and 7.1.12(d) (related compliance procedure requirement).
Including
these provisions in the permit is not necessary to assure compliance with the underlying
standard,
is not required by the Board’s regulations,
and, therefore,
exceeds the Agency’s
authority to gapfill.
Maintaining compliance with the CO limitation has historically been a
work practice, thus its inclusion
in the work practice condition ofthe
permit.
Sophisticated
control systems are programmed to maintain boilers in an optimal operating mode, which
serves to minimize CO emissions.
One can speculate that because it is in Fisk’s best interests
to operate its boilers optimally and because ambient CO levels are so
low,’5 compliance with
the CO limitation has been accomplished through combustion optimization techniques
historically
at power plants.
There is no reason to change this practice at this point.
Ambient
air quality is not threatened, and stack testing has demonstrated that emissions of CO at the
Fisk Generating Station, at
74.5
ppm
at Unit
19
during the latest
stack test, is significantly
below the standard of 200 ppm.
69.
In the case of CO, requiring the Stations to purchase and install equipment to
monitor and record emissions of a pollutant that stack testing demonstrates they comply with
—
by a comfortable
margin
—
and for which the ambient air quality
is in compliance by a huge
margin is overly burdensome and, therefore,
arbitrary and capricious.
In order to comply with
‘5The
highest
one-hour
ambient
measure
of CO
in the
state in
2003
was in
Peoria:
5.3
ppm; the highest
8-
hour ambient
measure
in the
state was
in
Maywood:
3.5 ppm.
Illinois Environmental Protection
Agency,
illinois
Annual Air Quality Report 2003,
Table
R7,
p.
57.
The one-hour
standard
is
35
ppm,
and
the
8-hour
ambient
standard
is 9 ppm.
35
Jll.Adm.Code
§ 243.123.
Note:
The
Illinois AnnualAir Quality Report 2003
is the latest
available
data on Illinois
EPA’s website at www.eoa.state.il.us 4
Air 9
Air Quality Information 4
Annual Air
Quality Report
4
2003 Annual
Report.
The
2004 report
is not
yet
available.
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the “work practice”6 ofperforming “diagnostic testing” that yields a concentration ofCO,
Midwest Generation must purchase and install or operate
some sort ofmonitoring devices.
70.
Furthermore, the Agency
has failed to provide any guidance as to how to
perform diagnostic measurements of the concentration of CO in the flue gas.
It is Midwest
Generation’s understanding that
a sample
can
be extracted from any point in the
furnace
or
stack using
a probe.
This sample can then be preconditioned (removal of water or particles,
dilution with air)
and
analyzed.
The way in which the sample is preconditioned and analyzed,
however, varies.
Given the lackofguidance and the variability in the way the
concentration of
CO in the flue gas
can
be measured, the data generated is not
sufficient to assure compliance
with the CO limit
and is, therefore, arbitrary and capricious.
Stack testing, on the other hand,
does yield data sufficient to assure compliance with the CO limit.
7!.
In addition, the
permit
requires at Conditions 7.1 .9(g)(i), 7.1 .9(g)(ii)(C)(V), and
7.1 .9(h)(ii)(D)(3)17 that Midwest Generation provide estimates ofthe magnitude ofCO emitted
during startup and operation during malfunction and breakdown.
The monitoring device that
Midwest Generation would utilize for the quarterly diagnostic evaluations required by
Condition 7.1.6(a) is a portable CO monitor.
So far as Petitioner knows, portable
CO monitors
are
not equipped with continuous readout recordings.
Rather, they must be manually read.
Whatthe Agency is effectively requiring through the recordkeeping provisions ofConditions
7.1 .9(g)(i), 7.1 .9(g)(ii)(C)(V),
and
7.1 .9(h)(ii)(D)(III) is that someone continually
read the
portable CO monitor during startup,
which could take as long as 24 hours, and during
16
Midwest Generation
questions how the requirement that the Agency
has
included
in Condition
7.1.6(a)
is
classified as a “work
practice.”
To derive a
concentration ofCO emissions, Midwest Generation
will have to
engage in monitoring
or testing; the work practice ofcombustion optimization that has
been
the standard
historically.
“Related conditions are 7.l.l0-1(axiv) (reporting) and 7,1.12(d) (compliance procedures).
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malfunctions and breakdowns, which
are
by their nature not predictable.
In the first case
(startup), the requirement is unreasonable
and
overly burdensome and perhaps dangerous in
some weather conditions; in the second case (malfunction and breakdown), in
addition to the
same problems that
are
applicable during
startup, it may be impossible
forMidwest Generation
to comply with the condition.
72.
The requirement to perform diagnostic measurements ofthe concentration of
CO in theflue gas is
arbitrary
and capricious because the Agency has failed to provide any
guidance as to how to perform the diagnostic measurements.
Midwest Generation can only
speculate as to how to develop and implement
a formula and protocol for performing
diagnostic measurements ofthe concentration of CO in the flue gas in the manner specified in
Condition 7.1.6(a).
73.
USEPA has not required similar conditions in the permits issued to
other power
plants in Region
5.
Therefore, returning to the work practice ofgood
combustion optimization
to
maintain
low levels of CO emissions is approvable
by USEPA and is appropriate
for CO in
the permit issued to the Fisk
Generating Station.
74.
Consistent with the APA,
Conditions 7.1.6(a),
7.1 .9(a)(vi), 7.1 .9(g)(i),
7.1 .9(g)(ii)(C)(V),
7.1 .9(h)(ii)(D)(HI), 7.1.10-1(a)(iv), and 7.1.12(d) to the extent
that
Condition 7.1.12(d) requires the quarterly diagnostic measurements and estimates ofCO
emissions during startupand malfunction/breakdown, contested herein, and any other related
conditions that the
Board finds appropriate
are stayed,
and Midwest Generation requests that
the
Board order the Agency to amend Condition 7.1.6(a) to reflect a requirement for work
practices optimizing boiler operation, to delete
the requirement for estimating the magnitude of
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CO emitted during startup
and
malfunction and breakdown, and to
amend the corresponding
recordkeeping, reporting,
and
compliance procedures
accordingly.
(v)
Applicability o135 IIl.Adm.Code 217.
Subpart V
75.
The Agency has included the word each in Condition 7.1.4W):
“The affected
boilers
are
each subject to the following requirements.
.
.
.“
(Emphasis added.)
Because of the
structure
and purpose of
35
111.Adm.Code 217.
Subpart V, which is the requirement that the NOx
emissions rate from certain coal-fired power plants during the ozone season average
no more
than 0.25
lb/mmBtu
across the state, Midwest Generation submits that the use of the word each
in
this
sentence is misplaced and confusing, given the option available to the Crawford
Generating Station
to average emissions among affected units in
infinite
combinations.
76.
Consistent with the APA, Conditions
7.1.4W) and
7.1 .4ffl(i)(A)
are
stayed,
and
Midwest Generation requests that the I3oard
order the Agency to delete the word each from the
sentence quoted above in Condition 7.1.4(1) and to insert the word each in Condition
7.1.4(f)(i)(A) if the Board agrees that its inclusion is necessary at all, as follows:
“The emissions
ofNOx from an ~
affected boiler
(vi)
Startup Provisions
77.
As is allowed by Illinois’
approved Title V program, CAAPP permits provide
an affirmative defense against enforcement actions brought against a permittee for emissions
exceeding an emissions limitation during startup.
The provisions in the Board’s rules allowing
for operation ofa CAAPP source
during startup are located at 35
Ill.Adm.Code 201.Subpart I.
These provisions, at
§
201.265 refer back to
§
201.149 with respect to the affirmative defense
available.
The rules nowhere limit the length oftime allowed for startup, and the records
and
reporting required by
§
201.263, the provision that the Agency cited as the regulatory basis for
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Condition 7.1.9(g), do not address startup at all;
it is limited
in its scope to
records
and
reports
required for operation during malfunction and breakdown where there
are
excess emissions.
Therefore, one must conclude that the records that the Agency requires here are the result of
gapfilling and are limited
to what is necessary to assure compliance with emissions limits.
78.
Midwest Generation is already required to provide information regarding when
startups occur
and
how long they lastby Condition
7.1 .9(g)(ii)(A).
Condition
7.1 .9(g)(ii)(B)
requires some additional information relative to startup.
Emissions of SO2, NOx, and
opacity
during startup
are
continuously monitored by the CEMS/COMS.
Midwest Generation has
already established that the magnitude of emissions ofPM and CO cannot be provided
(see
above).
The additional information that the Agency requires in Condition
7.1 .9(g)(ii)(C) after
a six-hour period does nothing to assure compliance
with the emissions limitations, which is
the purpose ofthe permit in the first place, and so exceeds the Agency’s authority to gapfill.
Moreover, this “additional” information would serve no purpose were it to be required even
afterthe 24 hours typical for startup.
79.
Consistent with the APA, Condition 7.1 .9(g)(ii)(C), contested herein,
is stayed,
and Midwest Generation requests that the Board order the Agency to delete the condition,
consistent with the startup provisions of 35 I1l.Adm.Code
§
201.149 and the
inapplicability of
§
201.263.
(vii)
Malfunction and Breakdown Provisions
80.
Illinois’
approved Title V program allows the Agency to grant sourcesthe
authority to operate during malfunction and breakdown, even though the source emits
in excess
of
its
limitations, upon certain showings by the permit applicant.
The authority must be
expressed in the
permit,
and the Agency has made such a
grant
of authority to Midwest
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Generation for the Fisk Generating Station.
This grant of authority serves only as an
affirmative
defense in
an enforcement action.
Generally see
Condition 7.1.3(c).
81.
Condition
7.1.1 0-3(a)(i) requires that Midwest Generation notify the Agency
“immediately” if it operates during malfunction and
breakdown and
there could be PM
exceedances.
As Midwest Generation
has
pointed out above, there is currently no proven or
certified methodology for measuring PM emissions other
than
through stack testing.
Therefore, the Agency is demanding that Midwest Generation noti& it ofthe mere supposition
that
there have been PM exceedances.
The Agency has provided no regulatory basis for
reporting suppositions.
At the very least, Midwest Generation should be granted the
opportunity to investigate whether operating conditions are such that support or negate
the
likelihood that there may have been PM emissions exceedances during the
malfunction
and
breakdown, though Midwest Generation does not believe that eventhis is necessary, since the
Agency lacks a regulatory basis for this requirement in the first place.
Reference to reliance on
opacity as an indicator ofPM emissions should be deleted.
The condition as written exceeds
the scope ofthe Agency’s authority to gapfill
and
so is unlawful, arbitrary and capricious.
82.
Also in Condition 7.1.10-3(a)(i), the Agency
has
deletedthe word
consecutive
as a
trigger
for
reporting
opacity and potential PM exceedanees during an “incident” in the
fmal version ofthe permit.
Versions prior to the July
2005 version include
that
word.
Its
deletion completely changes the scope
and
applicability ofthe condition.
Please see
Midwest
Generation’s comments on each version ofthe permit in the Agency Record.
As
the series of
comments demonstrates, it was not until the
draft
revised proposed permit issued in July 2005
that the Agency
had
deletedthe concept ofconsecutive six-minute averages of opacity from
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this condition.
In the December 2004 version ofthe permit, the word
consecutive
had been
replaced with
in a row,
but the concept is the same.
83.
The Agency has provided no explanation forthis change.
As
the actual opacity
exceedance could alone comprise the “incident,” Midwest Generation
believes
that
it is more
appropriate to retain the word
consecutive
in the condition (or add it back in to the condition).
Random, intermittent exceedanees of the opacity limitation do not necessarily comprise a
malfunction/breakdown “incident.”
On the other hand, a prolonged period of opacity
exceedance does possibly indicate a malfunction/breakdown
“incident.”
In the alternative,
Midwest Generation suggests that the Agency add a two-hour timefratne during which these
six or more six-minute opacity averaging periods
could occur to be consistent with the next
condition, 7.1 .10-3(a)(ii).
Likewise, a timeframe
is not included in Condition 7.1. 10-3(a)(ii),
which appears to refer to the same “incident”
that is addressed by Condition 7.1.1 0-3(a)(i).
Midwest Generation suggests that the Agency qualify the length oftime
during which the
opacity standard may have been exceeded for
two
or more hours
to 24 hours.
84.
Consistent with the APA, Condition 7.1.10-3(a)(i), contested herein, is stayed,
and
Midwest Generation requests that the Board order the Agency to delete it from the permit
as itrelates to
PM.
Consistent with the APA,
Condition 7.1.1 0-3(a)(ii), contested herein,
and
Midwest Generation requests that the Board order the Agency to remove the reference to PM
emissions
and
to
insert a timeframe to span the six six-minute
opacity averaging periods to
make them consecutive or, in the alternative, to require that they
occur
within a two-hour
block.
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(viii)
Alternative Fuels Requirements
85.
The Agency has included at Conditions 7.1
.5(a)(ii)-(iv)
requirements that
become applicable when Fisk uses a fuel other than coalas
its principal
fuel.
Condition
7.1
.5(a)(ii)
identifies
what constitutes using an alternative fuel as theprincipal fuel
and
establishes emissions limitations.
Condition
7.1
.5(a)(iii)
also describes the conditions under
which Fisk would
be considered to be using an alternative fuel as its principal fuel.
Condition
7.1 .5(a)(iv) requires notification to the Agency prior to Fisk’s use ofan alternative fuel as its
principal fuel.
86.
Inclusions ofthesetypes ofrequirements in Condition 7.1.5, the condition
addressing non-applicability ofrequirements,
is organizationally misaligned under thepermit
structure
adopted by the Agency.
These provisions should be included in the proper sections
of the permit, such as 7.1.4 for emissions limitations
and
7.1.10 for notifications.
In the
alternative, they should be in Condition 7.1.11(c), operational flexibility, where the Agency
already
has
a provision addressing alternative fuels.
As the Agency
has
adopted a
structure for
the CAAPP permits that
is fairly consistent not only among units in
a single permit but also
among permits,’8 for the Agency to
include specific recordkeeping requirements in the
compliance section creates a disconnect and uncertainty regarding where the permittee is to
find
out what it is supposed to
do.
87.
Additionally, at Condition
7.1.1 1(c)(ii), the Agency’s placement ofthe
examples ofalternative fuels defines them as hazardous wastes.
The
intent and purpose of the
condition
are
to ensure that these alternative fuels
are
not classified as hazardous wastes.
The
last
phrase
ofthe condition, beginning with “such as
petroleum
coke, fire derived fuel.
.
.
‘8That
is,
Condition
7.x.9
for all
types
of emissions
units in this permit,
from boilers to tanks, addresses
recordkeeping.
Likewise, condition
7.x.9
addresses recordkeeping in
all ofthe CAAPP pennits for EGUs.
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should be placed immediate!)’ after “Alternative fuels” with punctuation
and
other adjustments
to the
language as necessary, to clarify that the examples listed
are
not hazardous wastes.
88.
For these reasons, Conditions 7,1 .5(a)(ii),
7.1.5(a)(iii), 7.l.5(a)(iv),
and
7.1.1 l(c)(ii) are stayed pursuant to the APA,
and
Midwest Generation requests that the Board
order the Agency to place Conditions 7.1.5(a)(ii)-(iv) in more appropriate
sections ofthe
permit and to clarify Condition 7.1.11 (c)(ii).
(ix)
Stack Testing Requirements
89.
Condition 7.1.7(e) identifies
detailed information that
is to
be included in the
stack test reports, including target levels and settings.
To the extent that these requirements are
or can be viewed as enforceable operational requirements or
parametric
monitoring conditions,
Midwest Generation contests
this
condition.
Operation of an electric generating station
depends upon many variables
—
ambient
air
temperature, cooling water supply temperature,
fuel
supply, equipment variations,
and
so
forth
—
such that different settings
are
used on a daily
basis.
Stack testing provides a snapshot ofoperating conditions within the scope of the
operational paradigm set forth in the
permit
at Condition
7.1.7(b) that is representative of
normal or
maximum
operating conditions, but using those settings as some
type
of monitoring
device or
parametric
compliance data would be inappropriate.
90.
Consistent
with
the APA, Condition 7.1.7(c),
contested herein, is stayed, and
Midwest Generation requests that the Board order the Agency to delete the condition from the
permit.
(x)
Monitoring and Reporting Pursuant to NSPS
91.
It
appears from
various
conditions in the permit that theAgency believes that
Fisk is subject to NSPS monitoring and reporting requirements pursuant to the Acid Rain
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Program.
Midwest Generation’s review ofthe
applicable requirements under Acid Rain do not
reveal how the Agency arrived at this conclusion.
This is an example of how a statement of
basis by the Agency would have been very helpful.
The Acid Rain Program requires
monitoring and reporting pursuant to 40
CFR Part 75.
Specifically, 40 CFR
§
75.21(b)
states
that continuous opacity monitoring shall be conducted according to procedures set forth in state
regulations where they exist.
Recordkeeping is addressed at
§
75.57(1)
and
reporting at
§
75.65.
None ofthis references Part 60, NSPS.
92.
Arguably, it is odd that
a perniittee would appeal a condition in
a permit that
states that regulatory provisions are not applicable,
however, consistent with Midwest
Generation’s analysis of the Acid Rain requirements, the permit, and the Board’s regulations,
it
must also appeal Condition 7.1.5(b), which exempts Fisk from the requirements of35
Ill.Adm.Code 201.Subpart L based
upon the applicability ofNSPS.
NSPS
does not apply to
the Fisk Generating Station through the Acid Rain Program, and so this condition is
inappropriate.
93.
Conditions
7.1.1 0-2(b)(i),
7.1 .1 0-2(c)(i), and 7.1.1 0-2(d)(i) require Midwest
Generation to submit summary information on the performance ofthe
SO2, NOx, and opacity
continuous
monitoring systems, respectively, including the information specified at 40 CFR
§
60.7(d).
Condition 7.1.1 0-2(d)(iii) Note refers, also, to NSPS
§~
60.7(c) and (d).
The
information required at
§
60.7(d) is inconsistent with the information requiredby 40 CFR Part
75, which are the federal reporting requirements applicable to Midwest Generation’s boilers.
Section 60.7(d) is not an “applicable requirement,” as the boilers are not subject to the NSPS.
For Midwest Generation to comply with these conditions would entail reprogramming or
purchasing
and deploying additional software for the computerized CEMS, effectively
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resulting
in the
imposition of additional substantive requirements through the CAAPP permit
beyond the limitations ofgapfihling.
Moreover, contrary to Condition 7.1.1 0-2(d)(iii), Midwest
Generation does not find
a regulatory link between the NSPS provisions of40 CFR-6&7(cjand
(d) and the Acid Rain Program..
94.
Consistent with the APA, Conditions 7.1.5(b),
7.1.1 0-2(b)(i), 7.1.1 0-2(c)(i),
7.1.1 0-2(d)(i),
and 7.1.1 0-2(d)(iii) Note, contested herein, are stayed, and Midwest Generation
requests that the Board order the Agency to delete reference to 40
CFR 60.7(d).
(xi)
Opacity Compliance Pursuant to
§
212.123(b)
95.
The Board’sregulations at 35
Ill.Adm.Code
§
212.123(b) provide that a source
may exceed the
30
opacity limitation of
§
212.123(a) for an aggregate ofeight minutes in a
60-minute period but no more than three times
in
a 24-hour period.
Additionally, no other unit
at the source located within a 1,000-foot radius from the unit whose emissions exceed 30
may emit at such an opacity during the same 60-minute period.
Because the opacity limit at
§
2 12.123(a) is expressed as six-minute averages pursuant to Method
9
(see
Condition
7.1 .12(a)(i)), a source demonstrating compliance with
§
212.123(b) must reprogram its COMS
to record or report opacity over a different timeframe than would be required by demonstrating
compliance with
§
212.123(a) alone.
The Agency attempts
to reflect these provisions at
Condition 7.1.12(a), providing for compliance with
§
212.123(a) at Condition 7.1.1 2(a)(i) and
separately addressing
§
212.123(b) at Condition 7.1.l2(a)(ii).
Additionally, the Agency
requires Midwest Generation to provide it with
15 days’ notice prior to changing its procedures
to accommodate
§
212.123(b) at Condition
7.1.12(a)(ii)(E).
These conditions raise several
issues.
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96.
First, Condition 7.1.1 2(a)(ii) assumes that accommodating the “different”
compliance requirements of
§
212.123(b), as compared to
§
212.123(a), is a
change in
operating practices.
In fact, it is not.
Midwest Generation has been capturing opacity data
in
compliance with
§
2 12.123(b) for a number of months as ofthe issuance date ofthe permit.
Arguably, then, Midwest Generation has nothing to report to the Agency
pursuant to Condition
7.1 .12(a)(ii)(E), because no
change is occurring.
However, Midwest Generation suspects that
Agency assumes that
it has not made this so-called change yet.
Midwest Generation requests
clarification from the Board that such reporting is not required where the permittee
has already
accomplished the “change”
in datacapture prior to issuance ofthe CAAPP permit and that no
recordkeeping and datahandling practices must be
submitted for Agency review.
97.
Second, as with Midwest Generation’s objection to Condition 5.6.2(d),
Condition 7.1.1 2(a)(ii)(E) is an attempt by the Agency to insert itself into the
operational
practices of a source beyond the scope of its authority to do
so.
The Agency states that the
purpose ofthe
15 days’ prior notice is so that the Agency can review the source’s
recordkeeping and datahandling procedures, presumably to assure that they will comply with
the requirements implied by
§ 212.123(b).
As with Condition 5.6.2(d), the risk lies with the
permittee.
If, during an inspection or a review of a quarterly report, the Agency finds that
Midwest Generation has not complied with
§
212.123(b)’s implied data collection
requirements, then the Agency is authorized
by the Act to take certain actions.
Midwest
Generation is quite capable oftaking the responsibility for the data capture and recordkeeping
necessary for compliance
with
§
212.123(b).
98.
Moreover, while Condition 7.1.12(a)(ii)(E)
says that the Agency will review the
recordkeeping and data handling practices ofthe source, it says nothing about approving them
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or what the Agency pians to do with the review.
The Agency has not explained a purpose of
the requirement in
a statement-of-basis document or in
its Responsiveness Summary or shown
how this open-ended condition assures compliance with the applicable requirement.
Because
the Fisk Generating Station
is required to operate a COMS,
all of the opacity readings captured
by the COMS
are recorded and available to the Agency.
The Agency has had ample
opportunity to determine whether Fisk has complied with
§
212.123(b).
Midwest Generation’s
providing 15
days’ prior notice of its “change” to accommodating
§
212.123(b) will not
improve the Agency’s ability to determine Fisk’s compliance.
99.
Conditions 7.1.1 0-3(a)(i) and (ii) do not accommodate the applicability of
§
212.123(b).
The Board’s regulations do not limit when
§
212.123(b) may apply beyond eight
minutes per
60
minutes threetimes per
24 hours.
Therefore, any limitation on opacity must
consider or accommodate the applicability of
§
212.123(b) and not assume or imply that the
only applicable
opacity limitation is 30.
100.
Finally, inclusion of recordkeeping and notification requirements relating to
§
2 12.123(b) in the compliance
section ofthe pennit is organizationally misaligned under the
permit structure adopted by the Agency.
These provisions, to the extent that they are
appropriate in the first place,
should be included in the proper sections of the permit,
such as
7.1.9 for recordkeeping and 7.1.10 for reporting.
As the Agency has adopted a structure for the
CAAPP permits that is fairly consistent not only among units in a single permit but
also among
permits, for the Agency to include specific recordkeeping requirements in the compliance
section creates
a disconnect and uncertainty regarding where the permittee is to find out what
he or she is supposed to do.
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Consistent with the APA,
Condition 7.1.1 2(a)(ii), contested herein,
is stayed,
and
Midwest Generation requests that the Board order the Agency to delete the condition
from the
permit.
Additionally, consistent with the APA, Conditions
7.1.1 0-3(a)(i) and (ii), contested
herein, are stayed,
and, if the Board
does not order the Agency to delete these conditions from
the permit pursuant to other requests raised in this appeal, Midwest Generation requests that the
Board
order the Agency to amend these conditions to reflect the applicability of
§
212. 123(b).
E.
Coal
Handling Equipment, Coal ProcessingEquipment, and Fly Ash Equipment
(Sections
7.2, 7.3, and
7.4)
(i)
Fly Ash Handling v. Fly Ash Processing Operation
101.
No processing occurs within the fly ash system.
It is a handling and storage
operation the same as coal handling and
storage.
The Agency recognizes in Condition 7.4.5
that the NSPS forNonmetallic Mineral Processing Plants does not apply “because there is no
equipment used to crush or grind ash.”
This underscores Midwest Generation’s point that the
fly ash handling system is not a process.
102.
Because the. fly ash operations at the Fisk Station are not a process, they are not
subject to
the process weight rate rule at
§
212.321(a).
Section 212.321(a) is not an applicable
requirement under Title V,
since the fly ash operation is not a process.’9
The process weight
rate rule is not a legitimate applicable requirement and so is included in the permit
impennissibly.
Condition 7.4.4(c) and all other references to the process rate weight rule or
§
212.321(a), including in Section
10 ofthe permit, should be deleted.
103.
Since the fly ash operation is not
a process, reference
to it as a process is
inappropriate.
The word
process
and its derivatives in Section 7.4 ofthe permit should be
‘~
Midwest Generation
does not dispute the Agency’s insistence that fly
ash handling
is subjectto the
process weight
rate
rule
because
it
cannot comply;
in
fact,
Midwest Generation complies
by an
impressive margin.
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changed to
operation
and its
appropriate derivatives or, in one instance, to
handled,
to ensure
that there is no confusion as to the applicability of
§
212.321(a).
104.
Consistent with the APA, the Conditions 7.4.3, 7.4.4, 7.4.6,
7.4.7, 7.4.8, 7.4.9,
7.4.10,
and 7.4.11,
all
of which are contested herein, are stayed, and Midwest Generation
requests that the Board order the Agency to delete the Conditions 7.4.4(c), 7.4.9(b)(ii), and all
other references to the process weight rate rule, including in Section
10, and
add Condition
7.4.5(b) identifying
§
2 12.321(a) as a requirement that
is not
applicable to Fisk.
(ii)
Water Sprays for Coal Processing Operations
105.
Midwest Generation employs water spraying as another means ofcontrolling
emissions from the coal processing operations.
These should be
listed
at Condition 7.3.1.
For
these reasons, Condition 7.3.1, contested herein, is stayed,
and Midwest Generation requests
that the Board order the Agency to
add water
sprays to the description ofthe emissions control
practices at the Fisk Generating Station.
(iii)
Fugitive Emissions Limitations and Testing
106.
The Agency has applied the opacity limitations of
§
212.123
to
sources of
fugitive emissions
at the Fisk Generating Station through Conditions 7.2.4(b), 7.3.4(b), and
7.4.4(b), all
referring back to Condition
5.2.2(b).
Applying the opacity limitations of
§
212.123
to sources of fugitive emissions is improper and
contrary to the Board’s regulatory
structure covering PM emissions.
In its response to comments to this effect, the Agency claims
that
nJothing
in the State’s air pollution control regulations statesthat
the opacity limitation does not apply to
fugitive emission units.
The regulations at issue broadly apply to ‘emission units.’
Moreover, while not applicable to these power plants, elsewhere in
the State’s air pollution control regulations, opacity limitations are
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specifically set for fugitive particulate matter emissions at marine
terminals, roadways, parking
lots and storage piles.
Responsiveness Summary, p.
41.
107.
That the Agency had to
specifically establish fugitive emissions limitations for
such sources is
a strong indication that the regulatory structure did not
apply the opacity
limitations of
§
212.123 to frigitive sources.
Fugitive emissions are distinctly different in
nature from point source emissions, in
that point source emissions are emitted through a stack,
while fugitive emissions are not emitted through some discrete point.
Therefore,
fugitive
emissions are addressed
separately in the Board’s rule at 35 Ill.Adm.Code 2l2.Subpart K.
These rules call for fugitive emissions plans and specifically
identify thetypes of sources that
are to
be covered by these plans.
Condition
5.2.3
echoes these requirements, and Condition
5.2.4 requires the fugitive emissions plan.
108.
The limitations for fugitive emissions are
set forth at
§
212.301.
It is a no-
visible-emissions standard, as viewed at the property line ofthe source.
The measurement
methods for opacity are set forth at
§
2 12.109, which requires application of Method 9 as
applied to
§
212.123.
It includes specific provisions for reading the opacity ofroadways and
parking areas.
However,
§
212.107,
the measurement method for visible emissions, says,
“This
Subpart shall not apply to Section
212.301 of this Part.”
Therefore, with the exception of
roadways and parking lots, the Agency is precluded from applying Method
9 monitoring to
fugitive emissions, leaving
no manner for monitoring
opacity from fugitive sources other than
the method set forth in
§
212.301.
This reinforces the discussion above regarding the structure
ofPart 212 and that
§
212.123
does not apply to sources of fugitive emissions other than where
specific exceptions to that general nonapplicability are
set
forth in the regulations.
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109.
As
§
212.107 specifically excludes the applicability ofMethod
9
to fugitive
emissions, the requirements of Condition 7.2.7(a), 7.3.7(a), and
7.4.7(a) are clearly
inappropriate and do not reflect applicable requirements.
Therefore, they. along
with
Conditions 7.2.4(b), 7.3.4(b), and 7.4.4(b),
must
be deleted from the permit.
Except for
roadways and parking
lots,
§
212.123
is not an applicable requirement for fugitive emissions
sources and the Agency’s inclusion ofconditions
for fugitive sources based upon
§
212.123
and Method 9
is unlawful.
To the
extent that Condition 7.2.12(a), 7.3.12(a), and 7.4.12(a) rely
on Method
9 for demonstrations ofcompliance,
it, too, is unlawful.
110.
The Agency also requires stack tests of the baghouses at Conditions 7.2.7(b),
7.3.7(b), and 7.4.7(b).
PM stack testing would
be conducted in
accordance with Test Method
5.
However, a part of complying with Method 5
is complying with Method
1, which
establishes the physical parameters necessary to test.
Midwest Generation cannot comply with
Method
1.
The stacks and vents for such sources as small baghouses and wetting systems are
narrow and not structurally built to accommodate testing ports and platforms for stack testing.
The PM emissions for these types ofemissions units are very small.
The inspections,
monitoring, and recordkeeping requirements are sufficient to
assure compliance.
These
conditions should be deleted from the permit.
111.
For these reasons, consistent with the APA, Conditions 7.2.4(b), 7.2.7(a),
7.2.7(b) 7.2.12(a), 7.3.4(b), 7.3.7(a), 7.3.7(b), 7.3.12(a),
7.4.3(b), 7.4.7(a),
7.4.7(b), and
7.4.12(a), all contested herein, are stayed,
and Midwest Generation requests that the Board
order the Agency to delete these conditions to the extent that they require compliance
with
§
212.123 and Method 9 or stacktesting and, thereby, compliance with Methods
I
and
5.
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(iv)
Temporary Fly
Ash Storage “Facility”
112.
Condition 7.4.3(b)(iii) refers to a storage “facility” for temporary storage offly
ash should that become necessary.
The implication ofthe word
facility
is
a building or other
type ofenclosure.
Midwest Generation objects to the use ofthe word
facility
without
clarification that it includes temporary storage in piles on the ground.
For this reason,
consistent with the APA,
Condition 7.4.3(b)(iii), contested herein, is
stayed, and Midwest
Generation requests that the Board
order the Agency to clarify the condition
appropriately.
(v)
Testing Requirements for Coal Handling, Coal Processing, and Fly Ash Handling
Operations
113.
The
final permit
provides
at Condition
7.4. 7(a)(ii) that Midwest Generation
conduct the opacity testing required
at Condition 7.4.7(a)(i) for a period of at least
30 minutes
“unless the average opacities for the first 12 minutes of observation (two six-minute averages)
are both less than 5.0 percent.”
The original draft and proposed permits (June 2003 and
October 2003, respectively) contained no testing requirement for fly ash handling.
This testing
requirement first appeared in the draft revised proposed permit of December 2004, and at that
time allowed for testing to be discontinued if the first
12 minutes’
observations were both less
than 10.
In the second draft revised proposed permit (July 2005), the Agency inexplicably
reduced the threshold for discontinuation ofthe testto
5.
114.
The Agency provided no explanation for (1) treating fly ash handling differently
from coal handling
in this regard
(see
Condition 7.2.7(a)(ii)20) or (2) reducing the threshold
from 10
to
5.
Because the Agency has not provided an explanationfor this change at the
time that the change was made to provide Midwest Generation with the opportunity, at worst,
20
“Theduration of
opacity
observations
for each test shall be
at least 30
minutes (five 6-minuttaverages)
unless the
average
opacities forthe first
12
minutes
ofobservations (two
6-minute averages)
are
both less
than J.QS
percent.”
(Emphasis added.)
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to try to understand the Agency’s rationale or to comment on the change, the
inclusion of this
change in the threshold for discontinuing the opacity test is arbitrary
and capricious.
Condition
7.4.7(a)(ii)
is inextricably entwined with 7.4.7(a),
and so Midwest Generation must appeal this
underlying condition
as well.
115.
For these reasons, Condition 7.4.7(a),
which is again contested herein, is stayed,
and, without conceding its appeal ofthese conditions as to their appropriateness at all,
as stated
above, Midwest Generation requests that if the conditions must remain in the permit the Board
order the Agency to
amend Condition 7.4.7(a)(ii) to reflect the
10
threshold, rather than the
5
threshold, for discontinuation of the opacity test, although Midwest Generation specifically
does not concede that Method 9 measurements are appropriate in the first place..
(vi)
Inspection Requirements for Coal Handling, Coal Processing, and Fly Ash Handling
Operations
116.
Conditions 7.2.8(a), 7.3.8(a), and 7.4.8(a) contain inspection requirements for
the coal handling, coal processing, and fly ash handling operations, respectively.
In each case,
the condition requires that “tjhese
inspections shall be performed with personnel not directly
involved
in the day-to sic
day operation ofthe affected operations
The Agency provides
no basis for this requirement other than a discussion,
after the permit has been issued, in the
Responsiveness Summary at page
19.
The Agency’s rationale is that the personnel performing
the inspection
should be “fresh” and “independent” ofthe daily operation, but the Agency
does not tell us whybeing “fresh” and “independent” are “appropriate” qualifications for such
an inspector.
The Agency rationalizes that Method 22,
i.e.,
observation for visible emissions,
applies, and so the inspectorneed have no particular skill set.
The opacity requirement for
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these operations is not 0
or no visible
emissions at the point ofoperation,
but rather at the
property line.
Therefore, exactly what the observer
is supposed to look at is not at all
clear.2’
117.
There is no basis in law or practicality
for this provision.
To
identilS’ in a
CAAPP permit condition who can perform an inspection is overstepping the Agency’s
authority and clearly exceeds any gapfilling authority that may somehow apply to these
observations of fugitive dust.
The requirement must be
stricken from the permit.
118.
The Agency has included in Conditions 7.2.8(b) and 7.3.8(b) that inspections of
coal handling and coal processing operations be conducted every
15
months while the process
is not operating.
Condition 7.4.8(b) contains a corresponding requirement for fly ash handling,
but on a nine-month frequency.
The Agency has not made it clear in a statement of basis or
even the Responsiveness Summary why these particular frequencies for inspections
are
appropriate.
Essentially, the
Agency is creating an outage schedule,
as these processes are
intricately linked to the operation of the boiler.
In any given area ofthe station, station
personnel are constantly alert to any “abnormal” operations during the course of the day.
Although these
are not formal inspections, they are informal inspections
and action
is taken to
address any “abnormalities” observed as quickly as possible.
It is Midwest Generation’s best
interest to
run its operations as efficiently and safely as possible.
While the Agency certainly
has gapfilling authority, the gapfilling authority is limited
to what is necessary to ensure
compliance with permit conditions.
SeeAppalachian Power.
It is not clear at all how these
frequencies of inspections accomplish that
end.
Rather, it appears that these conditions are
administrative compliance traps for work that
is done as part ofthe normal activities atthe
station.
2~
The Agency’s requirements
in this
condition also
underscore Midwest Generation’s
appeal
of
the
conditions applying an
opacity limitation
to
fugitive
sources,above at
Section
lIl.E.(iii).
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119.
Moreover, the Agency does not provide a rationale as to
why the frequency of
fly ash handling inspections should be greater (more frequent) than for the other operations.
120.
As these operations must be inspected
when they are not operating, and as they
would not operate during
an outage ofthe boiler, it is not necessary for the Agency to dictate
the frequency ofthe operations.
Rather,
it is logical that these
inspections should be linked
to
boiler outages.
Moreover, these operations are inspected on monthly or weekly bases
pursuant to Conditions
7.2.8(a), 7.3.8(a), and 7.4.8(a), and so any maintenance issues will be
identified long before the
15- or nine- month inspections.
121.
Conditions 7.2.8(b), 7.3.8(b), and 7.4.8(b) require detailed inspections ofthe
coal handling,
coal processing, and fly ash handling operations both before and after
maintenance has been performed.
The Agency has not provided a rationale for this
requirement and has not cited an applicable requirement for these conditions.
This level of
detail
in a CAAPP permit is unnecessary and inappropriate and exceeds the Agency’s authority
to gapfill.
These requirements should be deleted from the permit.
122.
Condition 7.2.8(a) requires inspections ofthe coal handling operations on
a
monthly basis and provides “that all affected operations that are in routine service shall be
inspected at least once during each calendar
month.”
Since the first sentence of the condition
already states that these operations are to be inspected
on a monthly basis, the last clause ofthe
condition appears superfluous.
However, until the July 2005
draft revised proposed permit, the
language
in this clause was “that all affected operations shall be inspected
at least once during
each calendar quarter.”22
The Agency has provided no explanation as to why the frequency of
the
inspections has
been increased.
~ That is, not alt aspects of the coat handling operations are required to be inspected during operation on
a
monthly basis.
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123.
For these reasons, Conditions 7.2.8(a), 7.3.8(a), and 7.4.8(a), and the
corresponding recordkeeping conditions, 7.2.9(d),
7.3.9(c), and 7.4.9(c), all of which are
contested herein, are stayed consistent with the APA, and Midwest Generation requests that the
Board
order the Agency to delete those provisions ofthese conditions that dictate who
should
perform inspections of these operations, to
delete the requirement contained in these conditions
that Midwest Generation inspect before and after maintenance and repair activities.
Additionally, Conditions 7.2.8(b), 7.3.8(b), and 7.4.8(b), contested herein, are stayed pursuant
to the APA, and Midwest Generation requests that the Board order the Agency to alter the
frequency ofthe
inspections
to correspond to boiler outages.
(vii)
Recordkeeping
Requirements
for Coal Handling, Coal Processing, and
Fly Ash
Handling Operations
124.
Condition 7.2.9(a)(i)(C) requires Midwest
Generation to
submit a list
identif~ying
coal conveying equipment considered an “affected facility” for purposes of NSPS.
Such
a list was included in the application, and that should suffice.
Moreover, the equipment
in question is subject to the NSPS identified in Condition 7.2.3(a)(ii), and so has already been
identified in the permit itself.
To require Midwest Generation to create a second list is
redundant and not necessary to ensure compliance with emissions limitations.
The equipment
has been permitted historically.
Moreover, the condition requires submission ofthis list
pursuant to Condition 5.6.2(d), which is addressed earlier in
this Petition.
Condition
7.2.9(a)(i)(C) should be deleted from the permit.
125.
Likewise, the demonstrations confirming that the established control measures
assure compliance with emissions limitations, required at Conditions 7.3.9(b)(ii) and
7.4.9(b)(ii), have already been provided to the Agency in the construction and CAAPP permit
applications.
These conditions are unnecessarily redundant, and resubmitting the
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demonstrations pursuant
to Conditions
7.3.9(b)(iii) and
7.4.9(b)(iii) serves no compliance
purpose.
Also, Conditions 7.3.9(b)(iii) and 7.4.9(b)(iii)
rely upon Condition 5.6.2(d), contested
herein.
Conditions
7.3.9(b)(ii), 7.3.9(b)(iii), 7.4.9(b)(ii), and 7.4.9(b)(iii)
should be deleted
from the permit.
126.
Moreover, Conditions 7.2.9(b), 7.3.9(b)(iii), and 7.4.9(b)(iii) include reporting
requirements within the recordkeeping requirements, contrary to the overall structure of the
permit.
Midwest Generation has already objected to the
inclusion ofthese conditions for other
reasons.
In any event, they
should not appear in Condition 7.x.9.
127.
Conditions 7.2,9(d)(ii)(B), 7.3.9(c)(ii)(B), and
7.4.9(c)(ii)(B) are redundant of
7.2.9(d)(ii)(E), 7.3.9(c)(ii)(E), and 7.4.9(c)(ii)(E), respectively.
Such redundancy is not
necessary.
Conditions
7.2.9(d)(ii)(B), 7.3.9(c)(ii)(B), and 7.4.9(c)(ii)(B) should
be deleted
from the permit.
128.
Conditions 7.2.9(e)(ii), 7.2.9(e)(vii), 7.3.9(d)(ii), 7.3.9(d)(vii), 7.4.9(d)(ii), and
7.4.9(d)(vii) require Midwest Generation to provide the
magnitude ofPM emissions
during an
incident where the coal handling operation
continues without the use of control measures.
Midwest Generation has established that it has no means to
measure exact PM emissions from
any process on a continuing basis.
The Agency understands this,
Therefore, it is not
appropriate for the Agency to require reporting of the magnitude ofPM emissions.
129.
The Agency uses the word
process
in Condition 7.2.9(f)(ii) rather than
operation,’3
perhaps because use of
operation
at this point would be repetitious.
While this
may seem a very minor point, it is a point with a distinction.
The word
process,
as the Board
can see in Section
7.4 of the permit relative to the fly ash handling operation, can be
a
~ “Records foreach incident when operation of an. affected process continued during malfunction or
breakdown
(Emphasis added.)
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buzzword that implicates the applicability ofthe process weight rate rule.
Midwest Generation
wants there to be no possibility that anyone can construe coal handling
as a process subject to
the process weight rate rule.
Therefore,
Midwest Generation
has repeatedly requested that the
Agency substitute
operation
or some synonym for
process
in this context.
130.
The Agency provided no rationale and still provides no authority for its
inclusion ofConditions
7.2.9(d)(i)(B), 7.3.9(c)(i)(B), and 7.4.9(c)(i)(B), observations of
accumulations of coal fines and fly ash in the vicinity ofthe operation.
The Agency did
address this condition after the fact in the Responsiveness Summary, but did not provide an
acceptable rationale as to
why the provision is even there.
The Agency says, with respect to
the accumulation of fines, as follows:
Likewise, the identification of accumulations of fines in the
vicinity ofa process does not require technical training.
It merely
requires that an individual be able to identify accumulations of coal
dust or other material.
This
is also an action that could be
performed by a member of the general public.
Moreover, this is
a
reasonable requirement for the plants for which it is being applied,
which are required to implement operating programs to
minimize
emissions of fugitive dust.
At such plants, accumulations of fines
can potentially contribute to emissions of fugitive dust,
as they
could become airborne
in the wind.
Responsiveness Summary, p.
19.
The heart of the matter lies in the next-to-last sentence:
“plants..
.
which are required to implement operation programs to minimize emissions of
fugitive dust.”
This is accomplished through fugitive dust plans, required at 35
lll.Adm.Code
§
212.309 and Condition
5.2.4.
The elements of fugitive dust plans are set forth at
§
212.310 and
do not include observations ofaccumulations of fines.
In fact, nothing in the Board’s rules
addresses observing the accumulation offines.
131.
Observing accumulations offines is not an applicable requirement; therefore, its
inclusion
in the permit violates Title V and
Appalachian Power
by imposing a new substantive
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requirement upon the permittee through the Title V permit.
Additionally, observing
accumulations of fines cannot reasonably be included under gapfilling, as it is not necessary to
assure compliance with the permit.
The assurance of compliance with the fugitive dust
requirements rests within the adequacy of the fugitive dust plan, which must be submitted to
the Agency for its review, pursuant to
§
2 12.309(a),
and
periodically
updated, pursuant to
§
212.312.
Ifthe permittee does not comply with its fugitive dust plan or the Agency
finds that
the
fugitive dust plan is
not adequate, there are procedures and remedies
available to the
Agency to address the issue.
However, those remedies and procedures do not
fall within the
scope of gapfilling to the
extent that the Agency
can require by permit what must be included
in the fugitive dust plan beyond
the specifications ofthe regulation.
Likewise, the Agency
cannot supplement
the fugitive dust plan, the regulatory control plan, through the permit.
132.
Given that the fly ash system results in few emissions,
rarely breaks down,
and
is a closed
system, there is no apparent justification for the trigger for additional recordkeeping
when
operating during malfunction/breakdown
being only one hour in Condition
7.4.9(e)(ii)(E) compared to the two hours allowed for coal handling (Condition 7.2.9ffl(ii)(E))
and coal processing (Condition 7.3.9(e)(ii)(E)).
The Agency has provided no rationale for this
difference.
Moreover, in
earlier versions of
the permit, this time trigger was two hours.
See
the June 2003
draft permit and the October 2003 proposed permit.
133.
For these reasons, Conditions 7.2.9(a)(i)(C), 7.2.9(b), 7.2.9(d)(i)(B),
7.2.9(d)(ii)(B), 7.2.9(d)(ii)çE), 7.2.9(d)(ii)(B), 7.2.9(e)(ii),7.2.9(f)(ii), 7.3.9(b)(li), 7.3.9(b)(iii),
7.3 .9(c)(i)(B),
7.3.9(c)(ii)(B), 7.3.9(c)(ii)(E), 7.3.9(d)(ii), 7.4.9(b)(ii), 7.4.9(b)(iii),
7.4.9(c)(i)(B), 7.4.9(c)(ii)(B), 7.4.9(d)(ii), 7.4.9(c)(ii)(E), and
7.4.9(e)(ii)(E), all contested
herein, are stayed consistent with the APA, and Midwest Generation requests that the Board
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order the Agency to delete Conditions 7.2.9(a)(i)(C), 7.2.9(d)(i)(B), 7.2.9(d)(ii)(B), 7.3.9(b)(ii),
7.3.9(b)(iii), 7.3.9(c)(i)(B),
7.3.9(c)(ii)(B), 7.4.9(b)(ii). 7.4.9(b)(iii), and 7.4.9(c)(i)(B),
7,4.9(c)(ii)(B); add the concept ofestimating the magnitude of PM emissions to
Condition
7.2.9(e)(ii), 7.3.9(d)(ii), and
7.4.9(d)(ii); substitute the word
operation
for the word
process
in
Condition 7.2.9(f)(ii); and
change one hour to
two
hours in Condition 7.4.9(e)(ii)(E).
(viii)
Reporting Requirements for Coal Handling, Coal Processing, and Fly Ash Handling
Operations
134.
Conditions 7.2.1 0(a)(ii), 7.3.1 0(a)(ii),
and 7.4.1 0(a)(ii)
require notification to
the Agency for operation of support operations that were not
in compliance with the applicable
work practices of Conditions 7.2.6(a),
7.3.6(a), and 7.4.6(a), respectively, for more than
8
hours or
four hours with respect to ash handling regardless ofwhether there were excess
emissions.
Conditions 7.2.6(a), 7.3.6(a), and 7.4.6(a) identify the measures that Midwest
Generation employs to control fugitive emissions at the Fisk Generating Station.
Implementation ofthese measures is set forth in the fugitive dust plan required by Condition
5.2.4
and
§
212.309 but not addressed in
Conditions 7.2.6,
7.3.6, or 7.4.6.
The Agency’s
concern here in Conditions 7.2.10(a)(ii), 7.3.1O(a)(ii), and 7.4.10(a)(ii) should be with excess
emissions and
not with whether control measures
are implemented within the past 8 or four
hours, as the fugitive dust plan does not require implementation ofthose control measures
continuously.
There are frequently
8- or four-hour periods when the control measures are
not
applied because it is not necessary that they be applied or it is dangerous to apply them.
These
conditions should be amended to reflect notification of excess emissions and not of failure to
apply work practice control measures within the past
8
or four hours.
Midwest Generation
notes also, consistent with the discussion below, that the
Agency has providedno explanation
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as to why ash handling
in Condition 7.4.1 0(a)(ii) has only a four-hour window while coal
handling and processing have a 8-hour window.
135.
Conditions 7.2.1 0(b)(i)(A), 7.3.1 O(b)(i)(A),
and 7.4.1 0(b)O)(A) require
reporting when the opacity limitation jugy have been exceeded.
That a limitation ~
have
been exceeded does not rise to the level of an actual exceedance.
Midwest Generation believes
it is beyond the scope ofthe Agency’s authority to require reporting of suppositions of
exceedances.
136.
Additionally,
in these same conditions
(i.e.,
7.2.1 0(b)(i)(A), 7.3.1 0(b)(i)(A)),
and 7.4.10(b)(i)(A), the Agency requires reporting if opacity
exceeded the limit for “five or
more 6-minute averaging periods”
(“four
or more” for ash handling).
The next sentence in the
condition says, “(Otherwise,..
.
for no more than five 6-minute averaging periods
24
The
ash handling provision says “no more than three”
(Condition 7.4.10(b)(i)(A)).
The language in
Condition 7.4.l0(b)(i)(A) is internally consistent; however, the language in Conditions
7.2.l0(b)(i)(A) and 7.3.l0(b)(i)(A) is not.
The way these two conditions
are written, the
perinittee cannot tell whether five six-minute
averaging periods ofexcess opacity readings do
or do not require reporting.
In older versions ofthe permit,
five six-minute averaging periods
did not trigger reporting.
In fact, the August 2005 proposed version ofthe permit is the first
time that five six-minute
averages triggered reporting.
The conditions should be amended to
clarifS’ that excess opacity reporting in Conditions 7.2.l0(b)(i)(A) and 7.3.l0(b)(i)(A) is
triggered after five six-minute averaging periods and, as discussed below, that these averaging
periods should be consecutive or occur within some reasonable outside timeframe and not just
randomly.
24
With no
close to
the parentheses in the condition.
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137.
As
is the case with other permit conditions
for the fly ash handling operations,
the reporting requirements during
malfunction/breakdown at Condition 7.4.10(b)(i)(A)
for this
support operation are different from those for the coal handling and coal processing operations.
Midwest Generation must notify the Agency immediately for each incident in which opacity of
the fly ash operations exceeds the limitation for four or more six-minute averaging
periods,
while for coal handling and coal processing,
such notification is required apparently
(see
discussion above) only after five six-minute averaging
periods.
See
Conditions 7.2.1 0(b)(i)(A)
and 7.3.10(b)(i)(A).
The Agency has provided no basis for these differences or for why it
changed the immediate reporting requirement for ash handling from five six-minute averaging
periods, as in the October 2003 proposed permit, to the four six-minute averaging periods.
Additionally, the Agency has deleted the time frame during which these opacity exceedances
occur in this provision25 in all three sections
—
7.2.lO(b)(i)(A), 7.3.lO(b)(i)(A), and
7.4.lO(b)(i)(A).
C,f,
the October 2003 proposed permit.
The lack of a timeframe for these
operationshas the
same problems as discussed above regarding the boilers.
The trigger for
reporting excess opacity for all
three ofthese operations should be the same timeframe.
The
Agency has provided no justification as to why they
should be different, and given the
complexities of the permitting requirements generally, having these reporting timeframes
different adds another and an unnecessary layer ofpotential violation trips for the permittee.
No environmental purpose is served by having them different.
138.
The Agency requires at Conditions 7.2.10(b)(ii)(C), 7.3.10(b)(ii)(C), and
7.4.1 0(b)(ii)(C) that Midwest Generation aggregate the duration ofall
incidents during the
preceding calendar quarter when the operations continued during malfunction/breakdown with
~ Thatis, that the averaging periods
are
consecutive or occur within some tirneframe, such as two hours.
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excess emissions.
Midwest Generation
is already required at Conditions
7.2.1O(b)(ii)(A),
7.3.1 0(b)(ii)(A), and 7.4.1 0(b)(ii)(A) to provide the duration ofeach incident.
It is not at all
apparent to
Midwest Generation why the Agency needs this additional particular bit of data.
The Agency has not identified any applicable requirement that serves as the
basis for this
provision otherthan the general reporting provisions of Section
39.5 of the Act.
It is not
apparent that this
requirement serves any legitimate gapfilling purpose.
For these reasons,
these conditions should be deleted from the permit.
139.
Conditions 7.2.1 0(b)(ii)(D),
7.3.1 0(b)(ii)(D), and 7.4.1 0(b)(ii)(D) require
reporting that there were
no incidents ofmalfunction/breakdown, and so no excess emissions,
in the quarterly report.
The provisions in Section 7.l.10~226
require reporting only if there are
excess
emissions,
and Condition 7.1.10.3, which addresses malfunction/breakdown
specifically, requires only notification and only ofexcess emissions.
Reporting requirements
for the support operations during malfunction/breakdown should be limited to reporting excess
emissions and should not be required if
there are no excess emissions.
140.
For these reasons, Conditions 7.2.10(a)(ii), 7.2.10(b)(i)(A), 7.2.lO(b)(ii)(C),
7.2.1 0(b)(ii)(D), 7.3. l0(a)(ii), 7.3.10(b)(i)(A), 7.3.1 0(b)(ii)(C), 7.3. 10(b)(ii)(D),7.4. 10(a)(ii),
7.4.10(b)(i)(A), 7.4.10(b)(ii)(C), and 7.4.10(b)(ii)(D), all
contested herein, are stayed
pursuant
to
the APA, and
Midwest Generation requests that the Board order the Agency to qualify that
Conditions
7.2.1 0(a)(ii), 7.3.1 0(a)(ii), and 7.4.1 0(a)(ii) are limited
to notification when there
are excess emissions rather than when control measures have not been applied for an 8-hour
period or four-hour period in the case of ash handling;
to add
a timeframe for opacity
exceedances occurring during operation during malfunction/breakdown
for
immediate
~ Conditions
7.1 .1O-2(b~iii),
(c)(iii),
(dXiii),
and
(dxiv).
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reporting to the Agency in Conditions 7.2.1 0(b)(i)(A),
7.3.1 0(b)(i)(A). and
7.4.1 0(b)(i)(A);
to
change the number of six-minute averaging periods to
six and to delete the requirement for
reporting suppositions ofexcess
opacity
in
Conditions 7.2.10(b)(i)(A), 7.3.10(b)(i)(A), and
7.4.l0(b)(i)(A); to delete
Conditions 7.2.10(b)(ii)(C), 7.3.10(b)(ii)(C), 7.4.10(b)(ii)(C).
F.
Auxiliary Boiler
(Section
7.5)
(1)
Opacity and
Emissions Testing Requirements
141.
Condition 7.5.7(b) requires testing ofNOx
and CO.
However,
the
auxiliary boiler does not have ports that allow for this type oftesting,
at least in the manner
now required by the Agency.
The stack does not have the stack test ports and a platform to
accommodate USIEPA Method
1
testing requirements and allow a test crew to safely perform a
test.
Parametric monitoring demonstrates that emissions from the auxiliary boiler are half the
applicable standards,
and there has never been an exceedance of the rolling average of 0.2
lb
NOx/mmBtu.
The auxiliary boiler is infrequently operated, only 440 hours
in 2003, which is
only a
5
capacity factor.
Because of the low capacity factor, no
CO testing should be
required, and compliance should be assured through proper operation of the boiler.
The
parametric system that Midwest Generation employs for this unit has been approved by the
Agency pursuant to 40 CFR
§
60.49b(c) and is included in the permit at Condition 7.5.8(a) and
as an attachment to Section
10.
This parametric monitoring system, an applicable requirement
pursuant to the NSPS, satisfies the periodic
monitoring requirements of Title V.
142.
For these reasons, Condition
7.5.7(b),
contested herein,
is stayed pursuant
to the APA,
and Midwest Generation requests that
the
Board order the Agency to amend the
condition to allow for parametric monitoring in place of testing in the manner prescribed in the
permit.
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143.
The Agency also requires stack tests ofthe baghouses at Conditions 7.2.7(b),
7.3.7(b),
and 7.4.7(b).
PM stack testing would
be conducted
in accordance with Test Method
5.
However, a part of complying with Method
5
is complying with Method
I, which
establishes the physical parameters necessary to test.
Midwest Generation cannot comply with
Method
1.
The stacks and vents for such sources as baghouses and wetting systems are low
emitting, narrow, and short and cannot accommodate stack testing.
The inspections,
monitoring, and recordkeeping requirements are sufficient to
assure compliance.
These
conditions should be deleted from the permit.
(ii)
Reporting Requirements
144.
Condition 7.5.10-2(b)(iii) requires Midwest Generation to report information on
periods oftime when its GEMS
was inoperative.
However,
Midwest Generation is not
required to
rely on CEMS to determine current NOx emissions
levels.
Therefore, CEMS is
inapplicable and the reference in Condition
7.5.10-2(b)(iii) should be modified to delete the
reference to
CEMS.
145.
For these reasons, Condition 7.5.10-2(b)Qii), contested herein, is stayed
pursuant to the APA,
and Midwest Generation requests that the Board order the Agency to
delete the condition.
G.
Turbines
(Section
7.6)
(i)
Observations During Startup
146.
Condition 7.6.3(b)(ii)(A), under the startup provisions, requires
Midwest
Generation to observe the operation of the turbines to confirm proper operatiornandtwidentify
any maintenance issues to be addressed prior to
thenext startup.
This condition is confusing,
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in the first instance,
because it appears to
address operation of the turbine but
is
organizationally located in a condition addressing
startup.
The ambiguity should be corrected.
147.
Assuming the condition is about startup, it presents a number ofpractical
problems, which the Agency recognized in the recordkeeping provisions at 7.6.9(d)(ii)(D):
“11
the startup ofthe turbine was observed...
.“
(Emphasis added.)
The turbines are usually
started by remote operators responding to load demands.
Station operators may not know far
enough in advance of a startup of the turbines that they are to be
utilized and so cannot
necessarily observe each operation, let alone each startup.
Ifthe condition is
about operation,
Condition 7.6.6(b)(i) addresses the requirement the Agency appears to be trying to express.
Condition 7.6.6(b)(i)
requires Midwest Generation to formally observe operation of the turbine
at least every six months to ensure proper operation.
148.
Condition 7.7.3(b)(ii)(A) is confusing and possibly redundant.
It should
be
deleted from the permit.
149.
For these reasons, Condition 7.6.3(b)(ii)(A), contested herein, is stayed pursuant
to the APA, and Midwest Generation requests that the Board
order the Agency to delete the
condition from the permit.
(ii)
Observations During Operation
150.
As with Conditions 7.2.8(a), 7.3.8(a), and 7.4.8(a), the Agency
has specified in
Condition 7.6.6(b)(i) which ofMidwest Generation’s personnel may perform
the
task
identified in the condition: “...shall
be formally observed by operating personnel for the
turbine or a member of the Permittee’s environmental staff..
.
.“
Who performs the task is not
something that the Agency
can prescribe.
The Agency already requires that persons who
perform certain
tests, such as a Method 9 reading ofopacity, be certified
to do
so.
The
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requirement that the personnel performing an opacity observation, as in Condition
7.6.6(b)(i).
be certified to do
so is implicit in the requirement that the opacity reading be “formal,”
implying that it should be performed pursuant to
Method
9.
The Agency has no basis for
spelling out which of Midwest Generation’s personnel may perform required activities.
If
Midwest Generation chooses, the persons performing this
observation may not be its own
engine operator or members of its environmental
staff, yet the observations would
be valid.
151.
There is
no
applicable requirementthat specifies that the engine operator or the
environmental staff must be the personnel who observe opacity and operation ofthe turbines.
Specifically
identifying which personnel may perform these activities is not within the scope of
gapfilling, as it is not necessary to
ensure compliance with the permit.
Therefore, this
requirement is arbitrary and capricious and should be stricken from the permit.
152.
Forthese reasons, Condition 7.6.6(b)(i), contested herein, is stayed pursuant to
the APA, and Midwest Generation requests that the Board order the Agency to delete the
phrase
“by operating personnel for the turbine or a member of Permittee’s environmental staff’
from this condition.
(iii)
Observations of Excess Opacity
153.
Condition 7.6.10.(a)(i)(A) requires reporting when the opacity
limitation ~
have been exceeded.
That
a
limitation ~
have been exceeded does not rise to the level of an
actual exceedanee.
Midwest Generation believes it is beyond the scope ofthe Agency’s
authority to require reporting of suppositions ofexceedances.
154.
Also in
Condition 7.6.1 O(a)(i)(A), the
Agency has deleted the word
consecutive
as a trigger forreporting opacity and potential PM exceedanees during an
“incident” in the
final version of the permit.
Versions prior to the July 2005 version include
that
word.
Its
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deletion completely changes the scope and applicability
ofthe condition.
Please see
Midwest
Generation’s comments on each version ofthe permit in the
Agency Record.
As the series of
comments demonstrates,
it was not until the draft revised proposed permit issued
in July 2005
that the Agency had deleted the concept of consecutive six-minute averages ofopacity from
this condition.
In the December 2004 version ofthe permit, the
word
consecutive
had been
replaced with
in a row,
but the concept is the same.
155.
Forthese
reasons, Condition 7.6.1 0(a)(i)(A), contested herein, is
stayed, and
Midwest
Generation requests that the Board order the Agency to delete the concept of
requiring Midwest Generation to report mere suppositions and to add
a timeframe during
which excess opacity was observed before reporting is triggered.
(iv)
Fuel SO2 Data
156.
The
basis for determining compliance with the SO2 limitation
provided
in
Condition 7.6.12(b)
is USEPA’s default emissions factors, which are to be
used only when
better data is not available.
The condition should allow Midwest Generation to rely on such
better data, including characteristics ofthe fuel determined through sampling
and analysis, as
sampling and analysis
will provide better data for determining SO2 emissions.
157.
For these reasons, Condition 7.6.12(b), contested herein, is stayed pursuant to
the APA, and Midwest Generation requests
that the Board order the Agency to
amend the
condition to provide for the necessary flexibility for Midwest Generation to rely on better data
than default emissions
factors.
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H.
Gasoline
Storage Tank
(Section
7.7)
(I)
Gasoline
Sampling
and
Analysis Requirements
158.
While gasoline sampling
standards and methods are included in
35
Ill.Adm.Code
§
218.585, there is not a requirement in that
section that dispensers or users
(i.e.,
consumer) of the gasoline perform such sampling.
The sampling at gasoline stations is
typically performed by the Department of Agriculture’s Weights and Measures group, and they
provide the stickers that one sees on gasoline pumps certifring that the gasoline meets
standards for octane, Reid vapor pressure (“RVP”), and so forth.
Section
218.585 requires
refiners and suppliers ofgasoline to state that the gasolinethat they supply complies with RVP
requirements.
They are the parties who are required to
perform the requisite
sampling pursuant
to the standards and methods included in
§
218.585.
Midwest Generation is not
a “supplier” of
gasoline as the term
is used
in
§
218.585; rather, Midwest Generation is a consumer of
gasoline.
While it is incumbent upon Midwest Generation to ensure that the gasoline in their
storage tanks complies with
RVP
limitations, the proper statement from Midwest Generation’s
supplier of the gasoline’s compliance is sufficient under
§
218.585
for compliance with this
regulation.
The regulation
is not, strictly, an “applicable requirement” for Midwest
Generation, and the Condition 7.7.7(a) should be
stricken from the permit.
Recordkeeping
requirements are sufficient to
ensure compliance with the RVP limitations that are applicable
to a consumer such as Midwest Generation, at Condition 7.7.12(b).
159.
For these reasons, consistent with the APA, Conditions 7.7.7(a) and 7.7.12(b),
contested herein, are stayed, and Midwest Generation requests that the Board order the Agency
to delete Condition 7.7.7(a) and to delete reference to
sampling gasoline as a means of
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demonstrating compliance in Condition
7.7.12(b).
Also, note that the Agency’s citations to the
regulations are incorrect.
(ii)
Inspection Requirements
160.
The Board’s regulations for gasoline distribution are sufficient to
assure
compliance.
Therefore, the Agency’s inclusion ofpermit conditions
specifying inspections of
various components of the
gasoline storage tank operation exceeds its authority to gapfill.
These requirements
are at Condition 7.7.8(a).
Certainly, there
is no
regulatory basis for
requiring any inspections within the two-month timeframe included in Condition 7.7.8(a).
161.
Therefore, consistent with the APA, Condition
7.7.8(a) and the corresponding
recordkeeping condition, 7.7.9(b)(iii), contested herein, are stayed, and Midwest Generation
requests that the Board order the Agency to delete these conditions from the permit.
(iii)
Recordkeeping Requirements
162.
Conditions 7.7.9(b)(i) and 7.7.9(d) are redundant.
Both require records ofthe
RVP ofthe gasoline in the tank.
Midwest Generation
requests that the Board order the
Agency
to delete Condition 7.7.9(b)(i)
from the permit.
As a contested
condition, Condition 7.7.9(b)(i)
is stayed pursuant to the
APA.
1.
Maintenance and Renair Logs
(Sections 7.1, 7.2, 7.3,7.4 7.5, 7.6 7.7)
163.
The permit includes requirements that Midwest Generation maintain
maintenance
and repair logs for each of thepermitted operations.
However, the requirements
associated
with these logs differ among the various operations, which adds to the complexity of
the permit unnecessarily.
Specifically, Conditions 7.l.9(b)(i),
7.2.9(a)(ii), 7.3.9(a)(ii),
7.4.9(a)(ii), 7.6.9(a)(ii), and 7.7.9(a)(ii) require logs for each control device
or for the permitted
equipment without regard to excess
emissions ormalfunction/breakdown.
Conditions
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7.1.9(h)(i), 7.2.9(0(i), 7.3.9(e)(i), and 7.4.9(e)(i) require logs for components ofoperations
related to excess emissions during malfunction/breakdown.
Conditions 7.2.9(d)(i)(C),
7.3.9(c)(i)(C), and
7.4.9(c)(i)(C) require descriptions ofrecommended repairs and
maintenance, a review ofpreviously recommended repair and maintenance, apparently
addressing the
status ofthe completion of such repair or maintenance.
Conditions
7.2.9(d)(ii)(B)-(E), 7.3.9(c)(ii)(B)-(E),
and 7.4.9(c)(ii)(B)-(E) go evenfurther to
require
Midwest Generation to record the observed condition ofthe equipment and a summary ofthe
maintenance and repair that has been or will be performed on that equipment, a description of
the maintenance or repair that resulted from the inspection, and
a summary of the inspector’s
opinion ofthe ability ofthe
equipment to effectively and reliably control emissions.
164.
Each section ofthe permit should be
consistent on the recordkeeping
requirements for maintenance and repair ofemission units and their respective pollution
control equipment.
Consistency should be maintained across the permit for maintenance and
repair logs whereby
records are required only
if any emission unit, operation, process or air
pollution control equipment has a malfunction and breakdown with excess emissions.
165.
Conditions
7.2.9(d)(i)(D), 7.3.9(c)(i)(D) and 7.4.9(c)(i)(D) require “a
summary of the observed implementation or status of actual control measures, as compared to
the established control measures.”
Midwest Generation does not understand what this means.
These conditions
are ambiguous, without clear meaning,
and should be deleted from the
permit.
166.
These requirements exceed the limitations on the Agency’s authority to gapfill.
The purposes ofmaintaining equipment are multifold, including optimization ofoperation as
well as for environmental purposes.
The scope ofthe Agency’s concern is compliance with
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environmental limitations and that is the
scope that should apply to
recordkeeping.
The
maintenance logs required in this permit should be consistently limited to logs of repairs
correcting mechanical
problems that caused
excess emissions.
167.
For these reasons, Conditions 7.1 .91b)(i), 7.2.9(a)(ii), 7.2.9(d)(i)(C),
7.2.9(d)(i)(D), 7.2.9(d)(ii)(B)-(E), 7.3.9(
)(ii), 7.3.9(c)(i)(C), 7.3.9(c)(i)(D), 7.3.9(c)(ii)(B)-(E),
7.4.9(a)(ii), 7.4.9(c)(i)(C), 7.4.9(c)(i)(D), 7.4.9(c)(ii)(B)-(E), 7.6.9(a)(ii), and 7.7.9(a)(ii),
all
contested herein, are stayed consistent with the APA, and Midwest Generation requests that the
Board order the Agency to delete these conditions.
J. Testing Protocol Requirements
(Sections
7.1, 7.2, 7.3, 7.4)
168.
The permit contains testing protocol requirements in Section
7.1,
7.2,
7.3
and
7.4 that unnecessarily repeat the requirements set forth at Condition 8.6.2.
Condition 8.6.2, a
General Permit Condition, provides that specific conditions within Section
7 may supersede the
provisions ofCondition 8.6.2.
Where the
conditions in Section
7 do not supersede Condition
8.6.2 but merely repeat it, those conditions in
Section 7 should be deleted.
Included as they
are, they potentially
expose the permittee to allegations ofviolations based upon multiple
conditions, when those conditions are mere redundancies.
This is inequitable.
It is arbitrary
and capricious and such conditions in Section
7 should be deleted from the permit.
169.
More specifically,
Conditions 7.1.7(c)(i), 7.2.7(b)(iii), 7.3.7(b)(iii), and
7.4.7(b)(iii) repeat therequirement that test plans be
submitted
to the Agency at least 60
days
prior to testing.
This 60-day submittal requirement is part of Condition 8.6.2 as well.
Condition 7.1.7(e), on the other hand, properlyreferences
Condition 8.6.3 and requires
additional information in the test report without repeating Condition 8.6.3.
However,
Conditions 7.2.7(b)(v), 7.3.7(b)(v), and 7.4.7(b)(v) require information in the test report that is
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the same as the information required by Condition 8.6.3.
To the extent that the information
required by the conditions
in Section
7 repeat the requirements ofCondition 8.6.3, they should
be deleted.
170.
Forthese reasons, Conditions
7.1 .7(c)(i), 7.2.7cb)(iii), 7.2.7(b)(v), 7.3.7(b)(iii),
7.3.7(b)(v), 7.4.7(b)(iii), and 7.4.7(b)(v), contested herein, are stayed pursuant to the APA, and
Midwest Generation requests that the Board order the Agency to delete 7.l.7(c)(i), 7,2.7(b)(iii),
7.3.7(b)(iii),
and
7.4.7(b)(iii) and to amend Conditions 7.2.71b)(v), 7.3.7(b)(v), and 7.4.7(b)(v)
such that they do not repeat the requirements ofCondition 8.6.3.
K. Standard
Permit Conditions
(Section
9)
171.
Midwest Generation is concerned with the scope of the term “authorized
representative” in Condition 9.3, regarding Agency surveillance.
At times, the Agency
or
USEPA may employ contractors who would be theirauthorized representatives to perform
tasks that could require them to enter onto Midwest Generation’s property.
Such
representatives, whether they are the Agency’s or USEPA’s employees or contractors, must be
subject to the limitations imposed by applicable Confidential Business Information (“CBI”)
claims and by Midwest Generation’s health and safety rules.
Midwest Generation believes that
this condition needs to make it clear that Midwest Generation’s CBI and health and safety
requirements are limitations
on surveillance.
172.
For these reasons, Condition 9.3, contested herein, is stayed pursuant to the
ABA, and Midwest Generation requests that the
Board order the Agency to clarif~the
limitations on surveillance in the condition as set forth above.
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L.
Typographic Errors
(All Sections)
173.
Condition 7.1.10-1(b)(i) contains a reference to the wrong condition.
This error
creates confusion and ambiguity,
and results
in uncertainty regarding howcertain conditions
are to be implemented.
174.
For these reasons, Condition 7.1.10-1(b)(i),
contested herein, is stayed
consistent with the APA, and Fisk requests that the Board order the Agency to correct this
errors.
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WHEREFORE,
for the reasons set forth herein, Petitioner Midwest Generation requests a
hearing before the Board to contest the decisions contained in the CAAPP permit
issued to
Petitioner on
September 29, 2005,
for the Fisk Generating Station.
The permit contested herein
is not effective pursuant to Section
10-65
of the Administrative
Procedures Act
(5
ILCS
100/10-
65).
In the alternative, to
avoid potential confusion and uncertainty described earlier, and to
expedite the review process.
Petitionerrequests
that the Board
exercise its discretionary
authority to stay the entire permit.
Midwest Generation’s state operating permit issued for the
Fisk Generating
Station will
continue
in liii!
force and effect, and the environment will not be
harmed
by this stay.
Further,
Petitioner requests that the Board remand the permit to
the Agency
and order it to appropriately revise conditions contested herein and any other provision the
validity or applicability ofwhich
will be affected by the deletion or change in the provisions
challenged herein and to reissue the CAAPP permit.
Respectfully submitted,
MIDWEST GENERATION,
LLC,
FISK GENERATING
STATI
by:
4Nae~~
One ofIts
Attorneys
Dated:
November 2, 2005
Sheldon A.
Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua
R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
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